SpotLaw 2014

HIGH COURT OF AUSTRALIA

Burnie Port Authority

Vs.

General Jones Pty. Limited

(Mason CJ(1), Brennan(2), Deane(1), Dawson(1), Toohey(1), Gaudron(1) And Mchugh(3) JJ )

24 March 1994

MASON CJ, DEANE, DAWSON, TOOHEY AND GAUDRON JJ The respondent, General Jones Pty. Limited ("General"), suffered damage when a very
large quantity of frozen vegetables which it owned was ruined by a fire which destroyed a building owned by the appellant, the Burnie Port Authority ("the Authority"), at Burnie in Tasmania. The frozen vegetables were stored in three cold rooms in the building. General occupied the cold rooms and an office area pursuant to an agreement with the Authority. The rest of the building, including the area between the ceiling and roof, remained under the occupation of the Authority. At the time of the fire, work was being carried out to extend the building and install further cold storage facilities in the extension. The original building in which the vegetables were stored was known as "Stage 1" and the uncompleted extension was known as "Stage 2".

2. The Authority had not engaged a head contractor in relation to the work involved in erecting and equipping Stage 2. Through employees, it effected part of that work itself, including clearance of the site, the pouring of the concrete foundations and the design of the steel work. Other work involved in Stage 2, including the
erection of the steel frame and the installation of electrical and refrigeration equipment, was entrusted to independent contractors. One of those independent contractors was Wildridge and Sinclair Pty. Limited ("W. and S.").

3. The work contracted to W. and S. included the installation of the additional refrigeration in Stage 2. It involved considerable welding and the use of a large quantity of expanded polystyrene (EPS) which is an insulating material. While EPS contains retardant chemicals to inhibit ignition, it can be set alight if brought into sustained ontact with a flame or burning substance. Once ignited, the substance dissolves into a liquid fire which burns with extraordinary ferocity, at a rate which increases in geometric progression. The EPS to be used by W. and S. was marketed under the commercial name of "Isolite" and was contained in approximately thirty cardboard cartons which were, to the knowledge of the Authority, stacked together in an area or "void" under the roof of Stage 2 ("the roof void") in close
vicinity to where W. and S. would, again to the knowledge of the Authority, be carrying out extensive welding activities. Obviously, it was essential that care be exercised to ensure that sparks or molten liquid from those welding activities did not ignite the cardboard of one of the stacked containers. If that happened, the
likelihood was that the Isolite in that container would ignite with the result that the whole of the Isolite would become an uncontrollable conflagration.

4. It is common ground that, at relevant times, the Authority was itself in occupation of Stage 2, including the roof void. The Authority took no steps to avoid the risk of conflagration which unguarded welding activities in the vicinity of the cartons of Isolite involved. On the findings of the learned trial judge, employees of
W. and S. carried out the welding activities in such a negligent fashion that sparks or molten metal fell upon one or more of the cartons containing the Isolite. The cardboard was set alight and the Isolite itself commenced to burn fiercely. The conflagration spread from the roof void to the whole of Stage 2 and most of Stage 1,
including those parts of the original building containing the cold rooms occupied by General. Within minutes of the commencement of the fire, the whole complex was engulfed in flames.

5. In due course, General sued both the Authority and W. and S. in the Supreme Court of Tasmania. At first instance, the proceedings were complicated by cross-claims and third party claims among the defendants and an additional party, Olympic General Products Pty. Limited ("Olympic"), which had been the supplier of the Isolite. The learned trial judge (Neasey J) found that General was entitled to judgment against the Authority and W. and S. for the damage (to be assessed) which it had sustained by reason of the loss of its frozen vegetables. His Honour held that W. and S.'s liability resulted from the application of the ordinary principles of the law of negligence ("ordinary negligence") and from the application of a special rule relating to an occupier's liability for damage caused by the escape of fire from his or her premises (the "ignis suus rule"). His Honour held that the Authority's liability resulted from the application of the ignis suus rule. As between the Authority and W. and S., his Honour found that the Authority was, by reason of W. and S.'s negligence, entitled to be indemnified by W. and S. in respect of any damages which it paid to General. The Authority's and W. and S.'s third party claims against Olympic were dismissed.

6. The Authority appealed to the Full Court from the trial judge's order that judgment be entered in General's favour against it. The Full Court (Cox, Crawford and Zeeman JJ) affirmed the Authority's liability to General and ordered that the appeal be dismissed. However, the members of the Full Court concluded that the basis of the Authority's liability to General lay not in any special rule relating only to the escape of fire but in a more general common law rule, the rule in Rylands v. Fletcher ((1) (1866) LR 1 Ex 265; affd (1868) LR 3 HL 330.), relating to the liability of an occupier for damage caused by the escape of dangerous substances introduced to his or her premises. The present appeal is by the Authority from the judgment and order of the Full Court.

7. In this Court, General has argued that it is entitled to maintain the judgment in its favour on each of three distinct grounds, namely, (i) the ignis suus principle; (ii) Rylands v. Fletcher liability; and (iii) ordinary (or Donoghue v. Stevenson ((2) [1931] UKHL 3; (1932) AC 562.) ) negligence. A fourth ground, ordinary nuisance, was raised in General's written outline of argument but was abandoned in the course of oral argument. For its part, the Authority, while denying any liability to General, has not challenged the findings in the courts below to the effect that General sustained substantial damage caused by the spread of fire from premises occupied by the Authority (Stage 2 and the residue of Stage 1) to the premises occupied by General (the cold rooms) and that the fire was caused by negligence on the part of the Authority's independent contractor in carrying out unguarded welding operations on the premises occupied by the Authority in the close vicinity of the stacked cardboard cartons of Isolite. It is in the context of those now undisputed findings of fact that the applicable principles of law must be identified. Ignis suus

8. The special common law rule relating to the liability of an occupier for damage caused by the escape of fire from his or her premises can be traced back to the 1401 Year Book case of Beaulieu v. Finglam ((3) (1401) YB 2 Hen. IV, f.8, pl.6; translated in Fifoot, History and Sources of the Common Law: Tort and Contract, (1949) at 166-167.). That special rule had its basis in the ancient custom of England ((4) See Beaulieu v. Finglam (1401) YB 2 Hen. IV, f.18,
pl.6 and Turberville v. Stampe [1792] EngR 145; (1697) 1 Ld Raym 264 (91 ER 1072): "common custom of the realm"; Filliter v. Phippard [1847] EngR 999; (1847) 11 QB 347 at 354 [1847] EngR 999; (116 ER 506 at 509): the "ancient law, or rather custom of England".). It did not extend to a fire caused by an act of
God or a stranger which was not, for the purposes of the rule, the occupier's ("suus") fire. While the old action on the case for damage caused by the spread of fire involved an allegation of "negligenter", the preferable view is that that was "a pleader's adverb" which originally did no more than reflect the perception that it was the
strict duty of the occupier of premises to prevent the spread of "his fire" from those premises ((5) See, generally, Comyns's Digest, 4^th ed. (1800), vol.1 at 284-285.).

9. The ignis suus rule was progressively modified in England in the 18th century by legislation ((6) See, in particular, Acts of 1707 (6 Anne c.31), 1711 (10 Anne c.14) and the Fires Prevention (Metropolis) Act 1774 (14 Geo. III c.78).) which ultimately operated indefinitely ((7) The operation of the relevant section of the 1707 Act was initially limited to three years duration, but was made perpetual by the 1711 Act.) to exclude the liability of "any person in whose house, chamber, stable, barn or other building, or on whose estate any fire shall ... accidentally begin" ((8) Fires Prevention (Metropolis) Act 1774, s.86.). The English legislation was subsequently adopted by a number of Australian legislatures ((9) See, generally, Higgins, Elements of Torts in Australia, (1970) at 209; Fleming, The Law of Torts, 8th ed. (1992) at 349-350.). A settled, and perhaps surprising, course of judicial decisions in England, and later in this country, has established that, contrary to the views of (amongst others) Blackstone ((10) Commentaries on the Laws of England, 10th ed. (1787), Bk 1 at 431.) and Bacon ((11) A New Abridgment of
the Law, 5th ed. (1789), vol.1 at 85. See also, Viscount Canterbury v. Attorney-General (1843) 1 Ph 306 at 315-319 per Lord Lyndhurst LC (41 ER 648 at 652-653).), any fire caused (or allowed to spread) through negligence is not, for the purposes of that legislation, an accidental one ((12) See Filliter v. Phippard (1847) 11 QB at 355-358 (116 ER at 510); Musgrove v. Pandelis (1919) 2 KB 43 at 47; Spicer v. Smee (1946) 1 All ER 489 at 495; Wise Bros. Pty. Ltd. v. Commissioner for Railways (N.S.W.) [1947] HCA 33; (1947) 75 CLR 59 at 67; Hargrave v. Goldman [1963] HCA 56; (1963) 110 CLR 40 at 58; Goldman v. Hargrave [1966] UKPC 2 [1966] UKPC 2; ; (1967) 1 AC 645 at 665.). The result is that the rule survived, and arguably still survives ((13) See, e.g., Balfour v. Barty-King (1957) 1 QB 496; Mason v. Levy Auto Parts of England Ltd. (1967) 2 QB 530 at 540-541; H. and N. Emanuel Ltd. v. Greater London Council (1971) 2 All ER 835 at 838-839. But note, for the view that it has been absorbed by more general principles, Jones v. Festiniog Railway Co. (1868) LR 3 QB 733 at 736, 738; Powell v. Fall (1880) 5 QBD 597 at first instance at 599 per Mellor J; affd by Bramwell, Baggallay and Thesiger L.JJ in the Court of Appeal; Gunter
v. James (1908) 24 TLR 868; Mansel v. Webb (1918) 88 LJKB 323 at 324-325.), in England as a special rule imposing liability upon an occupier of premises for the escape of a fire on the premises caused by the negligence of the occupier or his or her invitee or licensee ((14) Balfour v. Barty-King (1957) 1 QB at 504-505; H. and N. Emanuel Ltd. v. Greater London Council (1971) 2 All ER at 838.). If the ignis suus rule, as qualified by the Tasmanian equivalent of the English legislation ((15) See Supreme Court Civil Procedure Act 1932 (Tas.), s.11(15).), survives in the law of Tasmania as a special rule applicable to damage caused by fire, it will, as Neasey J held at first instance, suffice to impose liability upon the Authority for the damage sustained by General in the present case since it would render the Authority liable for the damage caused by the spread from the Authority's premises of a fire caused by the negligence of the Authority's independent contractor.

10. It is perhaps arguable that, in a context where the "rigorous" ((16) See, e.g., Bugge v. Brown [1919] HCA 5; (1919) 26 CLR 110 at 115; Hargrave v. Goldman (1963) 110 CLR at 57, 58.) special ignis suus rule was explained as being one of English custom, neither the rule itself nor the 18th century statutes which modified it were ever transported to this continent as part of our inherited law ((17) See Batchelor v. Smith (1879) 5 VLR L 176 at 178; Whinfield v. Lands Purchase and Management Board of Victoria and State Rivers and Water Supply Commission of Victoria (1914) 18 CLR 606 at 616; but cf., e.g., Hazelwood v. Webber [1934] HCA 62; (1934) 52 CLR 268 at 275; Hargrave v. Goldman (1963) 110 CLR at 58.). On the other hand, the whole of the common law of England can be truly said to be "the legal expression of custom" ((18) Williams v. Owen (1955) 1 WLR 1293 at 1297. See also Comyns's Digest, op.cit. at 285; Read v. J Lyons and Co. Ltd. (1945) KB 216 at 228 per Scott L.J; [1946] UKHL 2; (1947) AC 156 at 175 per Lord Macmillan.). It is, however, unnecessary to pursue that question. The cases in this Court establish that, under the common law of this country, any special rule relating to the liability of an occupier for fire escaping from his premises has been absorbed into, and qualified by, more general rules or principles. We turn to demonstrate that that is so. The difference of opinion in the courts below about the effect of the decisions of this Court makes it necessary that the cases be examined in greater detail than might otherwise be appropriate.

11. In Whinfield v. Lands Purchase and Management Board of Victoria and State Rivers and Water Supply Commission of Victoria ((19) [1914] HCA 49; (1914)
18 CLR 606.), a case concerned with damage caused by the escape of fire, Griffith CJ ((20) ibid. at 614-615, 616; Powers J concurring at 621-622.) and Isaacs J ((21) ibid. at 617.) rejected the proposition that, under the common law of this country, the occupier's liability falls to be determined by reference to some special rule restricted to the escape of fire as distinct from the more general principles defining liability for the escape of any dangerous substance. Indeed, in the course of his judgment ((22) ibid. at 616.) , Griffith CJ commented:

"It would be a shocking thing to lay down as a rule of law that in a country like Australia, where probably hundreds, if not thousands, of men travelling on foot in sparsely settled districts ask every day for permission to camp for the night on private property, the owner by granting such poor hospitality becomes responsible for the lighting of a fire by the wayfarer to boil his 'billy' or keep himself warm." would, as has been seen ((23) See above, fn.(12).), have imposed liability on such an owner for damage caused by the spread of fire as a result of the negligence of such a licensee. Isaacs J rejected the proposition that "fire being always dangerous unless confined, a person who introduces it upon his own land is, apart from the effect of inevitable accident or the wrongful interposition of a third person,
liable for all damages caused to another by its escape" ((24) (1914) 18 CLR at 617.). His Honour added that "(t)he decision in Rickards v. Lothian ((25) [1913] UKPCHCA 1; (1913) 16 CLR 387; (1913) AC 263.) and also the judgment in Eastern and South African Telegraph Co. v. Cape Town Tramways Cos. ((26) (1902) AC 381.) there cited, particularly when read together, place the law very definitely on a much more reasonable foundation." Those two cases were concerned with Rylands v. Fletcher liability - Rickards v. Lothian with liability for escape of water; the Cape Town Tramways Case with liability for escape of electric current. Isaacs J, in express reliance upon "their explanation of the doctrine of Rylands v. Fletcher" ((27) (1914) 18 CLR at 620.), held that liability for the escape of fire had not been established by Mr Whinfield.

12. The next case in the Court to which specific reference should be made is Hazelwood v. Webber ((28) [1934] HCA 62; (1934) 52 CLR 268.). In that case,
fire had escaped from the defendant's land to the plaintiff's land where it caused damage. The Court held that the defendant was liable pursuant to the general principles governing liability for the escape of dangerous substances. In the course of their judgment, Gavan Duffy CJ, Rich, Dixon and McTiernan JJ expressly referred ((29) ibid. at 274-276.) to the old common law rule relating to the escape of fire and to the Fires Prevention (Metropolis) Act 1774. Their Honours made
clear ((30) ibid. at 275, 277-278.) that the old special rule had been absorbed into the general principles relating to the escape of dangerous substances which had been laid down in Rylands v. Fletcher and developed in Rickards v. Lothian. Starke J, the fifth member of the Court, expressed a corresponding view ((31) ibid. at 280.):

"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 ((32) Jones
v. Festiniog Railway Co. (1868) LR 3 QB at 736.) called 'the
general rule of common law ... given in Fletcher v. Rylands' ...;
'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'
((3 3) ibid.) . 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."

13. Wise Bros Pty. Ltd. v. Commissioner for Railways (N.S.W.) ((34) [1947] HCA 33; (1947) 75 CLR 59.) was another case to reach the Court in which the
occupier of land was sued for damage caused by the escape of fire. The plaintiff's reliance upon a special ignis suus rule was seen by the Court ((35) ibid. at 67, 70, 73-74.) as answered by Hazelwood v. Webber. The Court treated as applicable ((36) ibid. at 67-68, 70, 73-74.) the general principles determining liability for the escape of dangerous substances introduced or collected upon land as explained and developed in Rylands v. Fletcher ((37) (1866) LR 1 Ex 265; (1868) LR 3
HL 330.), Rickards v. Lothian ((38) [1913] UKPCHCA 1; (1913) 16 CLR 387; (1913) AC 263.), Hazelwood v. Webber ((39) [1934] HCA 62; (1934) 52 CLR 268.) and Read v. J Lyons and Co. Ltd. ((40) [1946] UKHL 2; (1947) AC 156.). It was held that the defendant was not liable under those principles for the reason that its use of the land was not a non-natural use. The result was that the case was, by reason of the wrongful exclusion of evidence, remitted for a new trial restricted to two counts alleging ordinary negligence.

14. In Hargrave v. Goldman ((41) (1963) 110 CLR at 56-58.), Windeyer J
traced the origins of what he described ((42) ibid. at 58.) as "the
rigorous rule of the mediaeval common law" relating to escape of fire
and identified its statutory modifications in England and Western
Australia. His Honour concluded that, even if it were accepted that
those statutory modifications did not apply in this case, the Court
would not be "thrown back" to that rigorous rule since the Court had
"held that the old rules have been absorbed into the principle of
Rylands v. Fletcher; and that the strict liability of the common law is
subject to the qualifications of and exceptions to that principle"
((43) ibid.). In support of that conclusion, his Honour cited Bugge v.
Brown ((44) (1919) 26 CLR at 114-115.) and Hazelwood v. Webber ((45)
[1934] HCA 62; (1934) 52 CLR 268.). The reference to Bugge v. Brown was to pages of
the Commonwealth Law Reports in which Isaacs J had recorded that, in
the course of argument of that case, the Court had ruled against a
proposition "that the owner of land is liable for damage caused by any
fire there in fact kindled or kept by his servant whether negligently
or not, and whether or not in the course of his employment". The
various reports of the argument in Bugge v. Brown do not refer to
that ruling ((46) See (1919) 26 CLR at 111-114; (1919) VLR 264 at
266-268; (1919) 25 Argus LR 103 at 103-104.). Isaacs J's terse
explanation of it in his judgment was that "the rigorous proposition so
contended for cannot now be maintained". It is possible that, as
Zeeman J suggested in his judgment in the present case, the ruling was
based more on the perceived effect of the 18th century legislation than
on the perception in support of which Windeyer J cited it in Hargrave
v. Goldman, namely, that "the old rules have been absorbed into the
principle of Rylands v. Fletcher". On balance, however, it seems to
us that, in the context of Isaacs J's judgment in the earlier case
of Whinfield v. Lands Purchase and Management Board of Victoria ((47)
[1914] HCA 49; (1914) 18 CLR 606.), Windeyer J's reliance on Bugge v. Brown was well
founded. In that regard, it is relevant to note Isaacs J's reference,
in the course of argument in Bugge v. Brown ((48) (1919) 26 CLR at
112.), to Batchelor v. Smith ((49) (1879) 5 VLR L 176.) and the
subsequent reference in his judgment ((50) (1919) 26 CLR at 129.) to
Musgrove v. Pandelis ((51) (1919) 1 KB 314.). In the former case
((52) (1879) 5 VLR L at 178, 179.), it was held by the Full Court of
the Supreme Court of Victoria that neither the ignis suus rule nor the
18th century English statutes had ever applied in Victoria. In the
latter ((53) (1919) 1 KB at 317. This approach was affirmed by the
Court of Appeal in Musgrove v. Pandelis (1919) 2 KB 43. See also
Jones v. Festiniog Railway Co. (1868) LR 3 QB at 738 per Lush J), the
trial judge, Lush J, had indicated that, in the context of the Fires
Prevention (Metropolis) Act 1774, the defendant's liability for damage
caused by the escape of fire from his premises flowed from the
application of the "principle" of Rylands v. Fletcher rather than from
any special rule relating to the escape of fire. However, regardless of
the justification for Windeyer J's reliance on Bugge v. Brown, one
thing is clear. That is that his Honour's conclusion that the cases in
the Court establish that the old special rule relating to liability for
escape of fire has been "absorbed into the principle of Rylands v.
Fletcher" was fully justified by the judgments in Hazelwood v. Webber
and the other cases to which reference has already been made in this
judgment.

15. Nor is there any reason in principle or policy for the
preservation in this country of the special ignis suus rule formulated
as appropriate to urban circumstances in medieval England. For one
thing, that special rule was formulated before either the
establishment of more general principles dealing with the escape of
dangerous substances or the development of the modern law of
negligence. For another, though fire is an exceptional hazard in
Australia, contemporary conditions in this country have no real
similarity to urban conditions in medieval England where the escape
of domestic fire rivalled plague and war as a cause of general
catastrophe ((54) See, e.g., Filliter v. Phippard (1847) 11 QB at 354
(116 ER at 509); Balfour v. Barty-King (1957) 1 QB at 502. See also
Bell, The Great Fire of London in 1666, (1920) at 1, 17, 296-298;
Fifoot, op.cit. at 155; definition of "curfew" in The Oxford
English Dictionary, 2nd ed. (1989), vol.4 at 142.).

16. It follows that any liability of the Authority to General must
be founded otherwise than on some special rule dealing only with
liability for the escape of fire.

The 18th Century English Statutes

17. As has been seen, it is settled by judicial decision that the
18th century English statutes (and their Australian equivalents)
excluding the liability of any person for the spread of a fire which
"accidentally" began on "his" premises were inapplicable to a fire
caused by negligence. It has also been held that those statutes,
where still in force, have no application to exclude Rylands v.
Fletcher liability ((55) Musgrove v. Pandelis (1919) 1 KB 314; (1919)
2 KB 43.) or liability in nuisance ((56) Spicer v. Smee (1946) 1 All
ER at 495.). While that judicial confinement of the scope of the
English statutes, and of any Australian equivalents, should be accepted
as settled law, the reasoning which was invoked in support of it is
open to legitimate criticism ((57) See, e.g., Ogus, "Vagaries in
Liability for the Escape of Fire", (1969) 27 Cambridge Law Journal 104
at 112-116, 118-119.). A preferable rationalization is that those
statutes were directed solely to providing protection from liability
under the ignis suus rule ((58) See, e.g., Stallybrass, "Dangerous
Things and the Non-Natural User of Land", (1929) 3 Cambridge Law
Journal 376 at 397; but cf. Williams v. Owen (1955) 1 WLR at 1298.)
and accordingly must be construed as not concerned with providing
protection for liability under more general principles. On that
approach, the effect of our conclusion that no special ignis suus rule
survives in our common law is that those English statutes and their
Australian equivalents can be generally treated by the courts of this
country as no longer applicable. In any event, the effect of the
confinement by past decisions of the scope of those statutes is that
they are inapplicable to General's claim to the extent that it is based
on the rule in Rylands v. Fletcher or ordinary negligence.

The "true rule" in Rylands v. Fletcher

18. In Fletcher v. Rylands ((59) (1866) LR 1 Ex at 279-280.), a strong
Court of Exchequer Chamber ((60) Willes, Blackburn, Keating, Mellor,
Montague Smith and Lush JJ), in a judgment delivered by Blackburn J,
identified what was described as "the true rule of law":

"the person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if
it escapes, must keep it in at his peril, and, if he does
not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape. He can
excuse himself by shewing that the escape was owing to the
plaintiff's default; or perhaps that the escape was the
consequence of vis major, or the act of God; but as nothing
of this sort exists here, it is unnecessary to inquire what
excuse would be sufficient."

Notwithstanding the many accolades which have been, and continue to
be, lavished on Blackburn J's judgment ((61) See, e.g., Wigmore,
"Responsibility for Tortious Acts: Its History", (1894) 7 Harvard Law
Review 315, 383, 441 at 454: "the master-mind of Mr Justice Blackburn";
Newark, "The Boundaries of Nuisance", (1949) 65 Law Quarterly Review
480 at 487: "his great judgment"; Salmond and Heuston on the Law of
Torts, 20th ed. (1992) at 314: "always been recognised as one
of the masterpieces of the Law Reports".), that brief exposition
of "the true rule of law" is largely bereft of current authority or
validity if it be viewed, as it ordinarily is, as a statement of a
comprehensive rule ((62) See, e.g., Jones v. Festiniog Railway Co.
(1868) LR 3 QB at 736 per Blackburn J: "the general rule of common
law".). Indeed, it has been all but obliterated by subsequent
judicial explanations and qualifications. Thus, the phrase "for his
own purposes" has been largely discarded as a general qualification.
While it occasionally re-emerges in general statements of the rule, its
current role would seem to be confined to that of a bolster of the
requirement of "natural use" ((63) See below.) in cases involving the
use of premises for public or patriotic purposes ((64) See, e.g., Read
v. J Lyons and Co. Ltd. (1947) AC at 169-170.). The possessive "his"
before "lands", apparently used to denote ownership, must be expanded
to include the non-owning occupier. Arguably, it should be further
expanded to the stage where it would include any person in control. On
the other hand, it is arguable that it should be confined to exclude
the non-occupying owner. The word "lands", used in conjunction with
"escapes", is too narrow. The precise extent to which it should be
extended is, however, a matter of complete uncertainty. The
conjunctive "and" before "collects" and "keeps" should be read as the
disjunctive "or". The phrase "anything likely to do mischief if it
escapes" has, in a process commenced by Blackburn J himself ((65)
Jones v. Festiniog Railway Co. (1868) LR 3 QB at 736: "a thing of a
dangerous nature".), largely been supplanted by the word "dangerous".
The reference to "all the damage which is the natural consequence of
its escape" is too wide ((66) See below, fn.(118).). The statement
that it was "unnecessary to inquire what excuse would be sufficient"
has inevitably been overlaid by decisions identifying such excuses.
It does, however, serve the continued purpose of highlighting the fact
that the rule enunciated by Blackburn J was, as his Lordship made
clear, one of "prima facie" liability.

19. The Court of Exchequer Chamber in Fletcher v. Rylands itself
recognized that the above statement of the "true rule of law" is too
wide, even as an exposition of a prima facie rule, unless it is
accompanied by some overriding qualifications. Thus, Blackburn J
commented ((67) Fletcher v. Rylands (1866) LR 1 Ex at 280.) that:

"it seems but reasonable and just that the neighbour, who
has brought something on his own property which was not
naturally there, harmless to others so long as it is
confined to his own property, but which he knows to be
mischievous if it gets on his neighbour's, should be obliged
to make good the damage which ensues if he does not succeed
in confining it to his own property". (emphasis added)

Again, however, Blackburn J's statement of those qualifications has
long been overlaid and effectively displaced. The qualification
"which was not naturally there" was adverted to with apparent approval
by Lord Cairns LC in the House of Lords in Rylands v. Fletcher
((68) (1868) LR 3 HL at 340.) but converted ((69) ibid. at 338-339.),
without explanation and perhaps inadvertently, into a quite different
((70) See below.) requirement of "non-natural use". The qualification
"which he knows to be mischievous" has been, in the context of private
nuisance and the development of the modern law of negligence,
transformed from an apparent requirement of actual knowledge into a
requirement closely resembling, or perhaps even amounting to ((71) See
Cambridge Water Co. v. Eastern Counties Leather Plc. (1994) 2 WLR 53 at
79; and note Holmes' view that foreseeability of the likelihood of harm
is the unifying element of tortious liability: see O.W. Holmes, The
Common Law, (1882), Lectures III and IV; see also Read v. J Lyons and
Co. Ltd. (1945) KB at 227- 235.), a requirement of foreseeability of
relevant damage in the event of the escape of the dangerous substance.

20. Unfortunately, the subsequent judicial alterations and
qualifications of Blackburn J's statement of the "true rule" have
introduced and exacerbated uncertainties about its content and
application. Thus, while it is clear that the requirements of "for
his own purposes", "brings on", "his" (in the sense of ownership)
and "lands" are all too narrowly identified, there remains room for
legitimate dispute about precisely what, if anything, should be
substituted for each of them. In addition, it is unclear whether
another requirement, that of "escape", refers to escape from the
defendant's "land" or other "premises" or merely escape from control.
The critical obscurity resides, however, in the twin requirements of
"dangerous substance" and "non-natural use". If, as Rylands v.
Fletcher itself decided, water can be a dangerous substance for the
purposes of the rule, it is difficult to identify anything which,
accumulated either in sufficient quantity or under sufficient
pressure, might not be a dangerous substance. In that regard, it
would seem that Blackburn J's own exclusion of things "naturally
there" was intended to be understood as referring to things "naturally
there" in their "mischievous" state since the report of proceedings in
the Court of Exchequer discloses that, notwithstanding Blackburn J's
repeated use of the words "brings on" and "brought on" ((72) See
(1866) LR 1 Ex at 279, 280, 282.), the water in the defendants'
reservoir in Fletcher v. Rylands had come "to their land naturally"
((73) (1865) 3 H and C 774 at 786 [1865] EngR 436; (159 ER 737 at 742); but cf. Cambridge
Water Co. v. Eastern Counties Leather Plc. (1994) 2 WLR at 82.).

21. Lord Cairns L.C.'s requirement of "non-natural use" may have
originally been intended to echo Blackburn J's "not naturally there"
and to refer to a use of land other than in its natural state. If so,
that narrow interpretation of the requirement did not survive. The
most influential of the subsequent explanations of the requirement
of "non-natural use" has proved to be that formulated by the Privy
Council, in a judgment delivered by Lord Moulton on an appeal from
this Court, in Rickards v. Lothian ((74) (1913) 16 CLR at 400-401;
(1913) AC at 280.):

"It is not every use to which land is put that brings into
play (the principle in Rylands v. Fletcher). It must be
some special use bringing with it increased danger to
others, and must not merely be the ordinary use of the land
or such a use as is proper for the general benefit of the
community."

That formulation, which was to some extent based on the judgment of
Wright J in Blake v. Woolf ((75) (1898) 2 QB 426 at 428: "using ...
land in the ordinary way"; "an ordinary and reasonable user of ...
premises".), has been adopted both in this Court ((76) See, e.g.,
Whinfield v. Lands Purchase and Management Board of Victoria (1914) 18
CLR at 618; Hazelwood v. Webber (1934) 52 CLR at 278; Torette House
Pty. Ltd. v. Berkman (1940) 62 CLR 637 at 646, 656; Benning v. Wong
[1969] HCA 58; (1969) 122 CLR 249 at 302.) and in the House of Lords ((77) See,
e.g., Read v. J Lyons and Co. Ltd. (1947) AC at 169, 176, 187.). The
descriptions which it uses - "special" and "not ... ordinary" - seem to
focus, like Lord Cairns L.C's "non-natural", on the nature of the use.

22. However, other cases have made clear that, in determining whether
a use satisfies the "non-natural", "special" or "not ordinary"
description, regard may be had to the manner as well as to the nature
of the use. Increasingly, Rylands v. Fletcher liability has come to
depend on all the circumstances surrounding the introduction,
production, retention or accumulation of the relevant substance. That
being so, the presence of reasonable care or the absence of negligence
in the manner of dealing with a substance or carrying out an activity
may intrude as a relevant factor in determining whether the use of
land is a "special" and "not ordinary" one. Certainly, the factors
which are relevant in determining whether a defendant has been guilty
of negligence in a case involving damage caused by the escape from
premises of a dangerous substance will almost inevitably also be
relevant on the question whether the defendant's use of those premises
was a "natural" one. As Lord Porter said in Read v. J Lyons and Co.
Ltd. ((78) ibid. at 176.):

"each (i.e. the questions whether something 'is dangerous'
and whether a 'use' is a 'non-natural' one) seems to be a
question of fact subject to a ruling of the judge as to
whether the particular object can be dangerous or the
particular use can be non-natural, and in deciding this
question I think that all the circumstances of the time
and place and practice of mankind must be taken into
consideration so that what might be regarded as dangerous or
non-natural may vary according to those circumstances".

Those comments are not inconsistent with the statement of Gavan
Duffy CJ, Rich, Dixon and McTiernan JJ in Hazelwood v. Webber
((79) (1934) 52 CLR at 278.) that the question of non-natural use "is
not one to be decided by a jury on each occasion as a question of
fact". Indeed, the sentences in their Honours' judgment which
immediately precede that statement tend to emphasise the importance of
the particular factual circumstances ((80) ibid.):

"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."

Obviously, the question whether there has been a non-natural use in a
particular case is a mixed question of fact and law which involves
both ascertainment and assessment of relevant facts and identification
of the content of the legal concept of a "non-natural" use. Indeed,
it is one of those questions which may be misleadingly converted into
a pure question of fact or a pure question of law by an unexpressed
assumption that either the precise content of applicable legal
concepts or the relevant facts and factual conclusions are manifest
and certain. Be that as it may, and regardless of whether one
emphasises the legal or factual aspect of the question of non-natural
use, the introduction of the descriptions "special" and "not ordinary"
as alternatives to "non-natural", without any identification of a
standard or norm, goes a long way towards depriving the requirement of
"non-natural use" of objective content ((81) cf. Webber v. Hazelwood
(1934) 34 SR (NSW) 155, at 159 per Jordan CJ: "The adjectives which
have been used in this connection do not of themselves supply a
solution.").

23. In Read v. J Lyons and Co. Ltd., Lord Porter referred ((82) (1947)
AC at 176. See also, Cambridge Water Co. v. Eastern Counties Leather
Plc. (1994) 2 WLR at 82-83.) to a possible future need "to lay down
principles" for determining whether the twin requirements of "something
which is dangerous" and "non-natural use" have been satisfied. We are
unable to extract any such principles from the decided cases. Indeed,
if the rule in Rylands v. Fletcher is regarded as constituting a
discrete area of the law of torts, it seems to us that the effect of
past cases is that no such principles exist. In the absence of such
principles, those twin requirements compound the other difficulties
about the content of the "rule" to such an extent that there is quite
unacceptable uncertainty about the circumstances which give rise to its
so-called "strict liability". The result is that the practical
application of the rule in a case involving damage caused by the escape
of a substance is likely to degenerate into an essentially unprincipled
and ad hoc subjective determination of whether the particular facts of
the case fall within undefined notions of what is "special" or "not
ordinary".

24. If the problems of the rule in Rylands v. Fletcher were confined
to the uncertainties of its content and application, it would be
necessary for the courts to continue their so far spectacularly
unsatisfactory efforts to resolve them. The problems are not,
however, so confined. In the more than a century and a quarter that
has passed since its formulation by Blackburn J, the rule has been
progressively weakened and confined from within and the area of its
effective operation, in the sense of the area in which it applies
to impose liability where it would not otherwise exist, has been
progressively diminished by increasing assault from without. From
within, the broadening of Blackburn J's exception of things
"naturally there", which would seem to have been used in the sense of
without human intervention, into an exception of "natural", "ordinary"
or not "special" use has reduced the scope of the rule to the stage
where a majority of the House of Lords in Read v. J Lyons and Co.
Ltd. ((83) (1947) AC at 169-170, 174, 186-187.) could indicate a view
that, in the circumstances of that case, the use of land for the
obviously dangerous activity of manufacturing high-explosive shells may
have been outside the scope of the rule. From without, ordinary
negligence has progressively assumed dominion in the general territory
of tortious liability for unintended physical damage, including the
area in which the rule in Rylands v. Fletcher once held sway.
Ultimately, as will be seen, the resolution of this case largely turns
upon a consideration of the present relationship between ordinary
negligence and the rule in Rylands v. Fletcher. A starting point of
that consideration is an understanding of the role played by the
conception of proximity in the development of the unified modern law of
negligence.

Negligence

25. Fletcher v. Rylands was decided by the Court of Exchequer Chamber
some seventeen years before Lord Esher (then Brett MR), in Heaven v.
Pender ((84) (1883) 11 QBD 503.), formulated the general - or
"larger" ((85) ibid. at 509.) - proposition which constituted the
first step in the perception of a coherent jurisprudence of common law
negligence. Almost half a century later, the House of Lords in
Donoghue v. Stevenson ((86) [1931] UKHL 3; (1932) AC 562.)

effectively completed the
process. The judgment of Brett MR in Heaven v. Pender and the speech
of Lord Atkin in Donoghue v. Stevenson were both concerned with
identifying a general unifying proposition which explained why a duty
to take care to avoid injury to another had been recognized in past
cases in the courts. Essentially, the methodology of both was
identical: the identification of a general proposition which selected
"recognised cases suggest, and which is, therefore, to be deduced from
them" ((87) (1883) 11 QBD at 509; and see Donoghue v. Stevenson (1932)
AC at 580.) and the confirmation of the validity of the proposition
by ascertaining that no "obvious case can be stated in which the
liability must be admitted to exist, and which yet is not within this
proposition" ((88) (1883) 11 QBD at 509-510; and see Donoghue v.
Stevenson (1932) AC at 583-584.).

26. The "larger proposition" formulated by Brett MR in Heaven v.

Pender was one of foreseeability ((89) (1883) 11 QBD at 509.):
"whenever one person is by circumstances placed in such a
position with regard to another that every one of ordinary
sense who did think would at once recognise that if he did
not use ordinary care and skill in his own conduct with
regard to those circumstances he would cause danger of
injury to the person or property of the other, a duty arises
to use ordinary care and skill to avoid such danger".

It was, however, expressly rejected by the majority of the English
Court of Appeal (Cotton and Bowen L.JJ) in that case for the reason
that "there are many cases in which the principle was impliedly
negatived" ((90) ibid. at 516.). In Donoghue v. Stevenson, Lord
Atkin emphatically endorsed that rejection of it as an unqualified
proposition ((91) (1932) AC at 580 ("demonstrably too wide"), 582.).
On the other hand, he concluded ((92) ibid. at 582.) that "the
judgment of Lord Esher (in Heaven v. Pender) expresses the law of
England" if the requirement of a relationship of proximity, partly
derived from the judgments of Lord Esher MR himself and A.L. Smith
LJ in Le Lievre v. Gould ((93) (1893) 1 QB 491 at 497 per Lord Esher
MR: physically "near", at 504 per A.L. Smith L.J: physical
"proximity".), were recognised as a general overriding control - "this
necessary qualification" ((94) (1932) AC at 582; and see, generally,
Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" [1976] HCA 65; (1976) 136
CLR 529 at 574- 575; Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549 at 583-586;
Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 157 CLR 424 at 495-496;
Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 at 52;
Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376 at 382.) - of the test of
foreseeability.

27. The "general conception" of a relationship of proximity was
identified ((95) (1932) AC at 580.) by Lord Atkin as the "element
common to the cases where (liability in negligence) is found to exist"
and as the basis of the duty of care which is common to all such cases.

It has been stressed and developed in judgments in recent cases in the

Court ((96) See, in particular, Jaensch v. Coffey (1984) 155 CLR at
553-554, 583-586; Sutherland Shire Council v. Heyman (1985) 157 CLR at
441, 461-462, 471, 495-498; Stevens v. Brodribb Sawmilling Co.
Pty. Ltd. (1986) 160 CLR at 30, 49-53; San Sebastian Pty. Ltd.
v. The Minister (1986) 162 CLR 340 at 355; Cook v. Cook (1986)
162 CLR at 381-382.).
As Deane J pointed out in Stevens v. Brodribb Sawmilling Co. Pty.
Ltd. ((97) (1986) 160 CLR at 53; and see, generally, Cook v. Cook
(1986) 162 CLR at 382 per Mason, Wilson, Deane and Dawson JJ), that
common element of a relationship of proximity "remains the general
conceptual determinant and the unifying theme of the categories of case
in which the common law of negligence recognizes the existence of a
duty to take reasonable care to avoid a reasonably foreseeable risk of
injury to another". Without it, the tort of negligence would be
reduced to a miscellany of disparate categories among which reasoning
by the legal processes of induction and deduction would rest on
questionable foundations since the validity of such reasoning
essentially depends upon the assumption of underlying unity or
consistency.

28. It is true that the requirement of proximity was neither
formulated by Lord Atkin nor propounded and developed in cases in this
Court as a logical definition or complete criterion which could be
directly applied as part of a syllogism of formal logic to the
particular circumstances of a particular case ((98) See Donoghue v.
Stevenson (1932) AC at 580; and, generally, Stevens v. Brodribb
Sawmilling Co. Pty. Ltd. (1986) 160 CLR at 51-53.). As a general
conception deduced from decided cases, its practical utility lies
essentially in understanding and identifying the categories of case in
which a duty of care arises under the common law of negligence rather
than as a test for determining whether the circumstances of a
particular case bring it within such a category, either established or
developing ((99) See, generally, Jaensch v. Coffey (1984) 155 CLR at
585; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR at
53; Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1963] UKHL 4; (1964) AC
465, at 524-525.). That is, however, the basic function performed by
general principles or conceptions in the ascertainment and development
of the common law. More than half a century ago, Scott LJ ((100)
Haseldine v. C.A. Daw and Son Ltd. (1941) 2 KB 343, at 362-363.) drew
attention to the "curious repetition of history" involved in the fact
that "Lord Atkin's exposition of principle (had) met with the same
unfair criticism, although less in degree, as that which Lord Esher's
exposition (of principle in Heaven v. Pender had) evoked". Scott LJ
correctly pointed out ((101) ibid.) that criticism based on "the error
... of assuming that Lord Atkin was intending to formulate a complete
criterion, almost like a definition in the prolegomena to a new theory
of philosophy" failed to appreciate "the real value of attempts to get
at legal principle". The point can be illustrated by contrasting the
specific test of "non-natural", "special" or "not ordinary" use under
the rule in Rylands v. Fletcher with the general conception or
principle of proximity of relationship in the law of negligence. The
"non-natural" use test under the rule in Rylands v. Fletcher was not
deduced from past cases. As has been said, it was an unexplained, and
conceivably inadvertent, judicial transformation of Blackburn J's
qualification "not naturally there". More important, notwithstanding
its lack of clear objective content, it has been propounded merely as
a specific test to be directly applied, as part of a complex complete
criterion of liability, to the particular circumstances of a
particular case. Far from representing a unifying principle and a
general conceptual explanation and determinant of different categories
of case, it has, in combination with the associated (and often
confused ((102) See Stallybrass, op.cit. at 395-396.) ) requirement of
dangerousness, become a source of disunity and disparity within the
individual category. Thus, the introduction to or retention on land of
trees, water, gas, electricity, fire and high-explosives ((103) See,
generally, ibid. at 382-385; Fleming, op.cit. at 339.), amongst other
things, have all been seen, as a result of the application of the test
to the particular circumstances, as both attracting and not attracting
the operation of the rule in Rylands v. Fletcher ((104) See, e.g.,
Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co. (1921) 2 AC 465
at 471; but cf. Read v. J Lyons and Co. Ltd. (1947) AC at 169-170,
174, 186-187.). Indeed, the test of "non-natural use" has probably
done more than anything else to vindicate Sir Frederick Pollock's
identification, almost a century ago, of Rylands v. Fletcher as one of
those authorities "that are followed only in the letter, and become
slowly but surely choked and crippled by (judicially imposed)
exceptions" ((105) The Law of Fraud, Misrepresentation and Mistake in
British India, (1894) at 54.).

Ordinary negligence and the rule in Rylands v. Fletcher

29. Much has been written in the past about precisely where, among
the old forms of action, one should locate the source or sources of
the rule in Rylands v. Fletcher ((106) See, e.g., Wigmore, op.cit. at
452-456; Winfield, "The Myth of Absolute Liability", (1926) 42 Law
Quarterly Review 37; Winfield, "Nuisance as a Tort", (1931) 4 Cambridge
Law Journal 189; Newark, op.cit.; Prosser, Selected Topics on the Law
of Torts, (1982), c.3; Salmond and Heuston on the Law of Torts,
op.cit. at 315-316, 317-319.). However, the subsequent
emergence of a coherent law of negligence to dominate the territory of
tortious liability for unintentional injury to the person or property
of another has deprived the question of much of its practical
significance. Regardless of the parental claims of nuisance ((107)
See, e.g., Rickards v. Lothian (1913) 16 CLR at 395-396; (1913) AC at
275; Musgrove v. Pandelis (1919) 2 KB at 47, 49, 51; Read v. J Lyons
and Co. Ltd. (1947) AC at 173, 182-183; Benning v. Wong (1969) 122 CLR
at 296-297, 319-320; Cambridge Water Co. v. Eastern Counties Leather
Plc. (1994) 2 WLR 53.) or even trespass ((108) See, e.g., Foster v.
Warblington Urban Council (1906) 1 KB 648 at 672 per Stirling L.J;
Jones v. Llanrwst Urban Council (1911) 1 Ch 393 at 402-403 per Parker
J; Hoare and Co. v. McAlpine (1923) 1 Ch 167 at 175 per Astbury J;
Read v. J Lyons and Co. Ltd. (1947) AC at 166 per Viscount Simon; but
cf. Rigby v. Chief Constable of Northamptonshire (1985) 1 WLR 1242 at
1255 per Taylor J), the rule has been increasingly qualified and
adjusted to reflect basic aspects of the law of ordinary negligence.
As has been said, Blackburn J's qualification: "which he knows to
be mischievous", has been refined into an objective test which is
(at the least) a close equivalent of foreseeability of damage of the
relevant kind. As has been seen, the absence of reasonable care or
the presence of "negligence" has itself intruded as a factor in
determining whether, for the purposes of the rule, the use of land is
"non-natural", "special" or "not ordinary". Moreover, the various
defences of an occupier of premises against Rylands v. Fletcher
"strict liability" closely correspond with grounds of denial of fault
liability under the law of negligence. Thus, "consent" and "default
of the plaintiff" are analogous to voluntary assumption of risk and
contributory negligence. Again, while Blackburn J recognized them as
possible excuses ((109) (1866) LR 1 Ex at 280.), defences of
"consequence of vis major, or the act of God", in the context of damage
caused by the "escape" of the dangerous substance, are more attuned to
the notion of fault liability than that of strict liability ((110) But
cf. Benning v. Wong (1969) 122 CLR at 298-299 per Windeyer J). Where
the defence of statutory authority is available, the issue will
commonly become one of negligence simpliciter ((111) See, e.g.,
Northwestern Utilities Ltd. v. London Guarantee and Accident Co. (1936)
AC 108 at 119-121; Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619
at 630, 634, 637, 644-645.). Clearly, there is validity in Professor
Fleming's comment ((112) The Law of Torts, 8th ed. (1992) at 343.)
that "(t)he aggregate effect of these exceptions makes it doubtful
whether there is much left of the rationale of strict liability as
originally contemplated in 1866."

"Developments in the law of tort are towards a liability for
personal harm done to persons who are neighbours in Lord
Atkin's sense. They need not be persons having an interest
in land in the neighbourhood. The movement of the common
law is away from any preoccupation it may once have had with
the protection of rights in land. ... I think this Court
should ... treat the doctrine of Rylands v. Fletcher as
having become in this matter emancipated from restrictions
its origin in or relationship with nuisance might impose."

It would seem that, in England, recoverable damages under the rule in
Rylands v. Fletcher may still be confined to compensation for damage
to property sustained by the owner or occupier of neighbouring land
"on to" which the dangerous thing "passes" and "does damage" ((114)
See, e.g., Read v. J Lyons and Co. Ltd. (1945) KB at 238; (1947) AC at
173, 174; but cf. Perry v. Kendrick's Transport Ltd. [1955] EWCA Civ 5[1955] EWCA Civ 5; ; (1956) 1 WLR 85 at
92.). In this country, such damages are not so confined but extend to
personal injury or damage to property sustained outside the relevant
premises by persons having no relationship to neighbouring land apart
from being on it ((115) See, e.g., Thompson v. Bankstown Corporation
(1953) 87 CLR at 644; Benning v. Wong (1969) 122 CLR at 274-275, 277,
319-320.). As Windeyer J said in Benning v. Wong ((116) (1969) 122
CLR at 320.):

"A plaintiff can I think recover under it for personal
injuries, or harm to his personal effects if, at the time
when the escaping thing came upon him, he was in a place
where he was lawfully entitled to be as a licensee, or as a
member of the public, such as on a highway or in a public
park."

Windeyer J's qualification "where he was lawfully entitled to be" was
intended, as his Honour made clear ((117) ibid.), to leave open rather
than to exclude the position of a trespasser. Otherwise, the main
control of recoverable damages under the rule is the requirement that
the damage be related to the qualities or circumstances which bring the
case within the rule ((118) See Fletcher v. Rylands (1866) LR 1 Ex at
279: "damage which is the natural consequence of (the) escape";
Fleming, op.cit. at 329.). In the context of the other requirements
of the rule ((119) In particular, Blackburn J's "which he knows to be
mischievous" as developed by subsequent authority.), that control
closely corresponds with ordinary negligence's insistence that
actionable damage be foreseeable ((120) Benning v. Wong (1969) 122 CLR
at 320; see also Salmond and Heuston on the Law of Torts, op.cit. at
324-325; Todd et al., The Law of Torts in New Zealand, (1991) at 471;
but cf. Clerk and Lindsell on Torts, 15th ed. (1982) at 1205.).

31. The rule in Rylands v. Fletcher has never been seen as
exclusively governing the liability of an occupier of land in respect
of injury caused by the escape of a dangerous substance ((121) See,
e.g., Carstairs v. Taylor (1871) LR 6 Ex 217; Ross v. Fedden (1872) LR
7 QB 661; Anderson v. Oppenheimer (1880) 5 QBD 602; Rickards v. Lothian
[1913] UKPCHCA 1; (1913) 16 CLR 387; (1913) AC 263; Torette House Pty. Ltd. v. Berkman
[1940] HCA 1; ; (1940) 62 CLR 637; Hargrave v. Goldman [1963] HCA 56; (1963) 110 CLR 40.). In
that, the rule can be contrasted with the old special rules defining
the liability of an occupier of premises for damage sustained by a
visitor on the premises which were traditionally seen as excluding the
application of more general principles ((122) See, e.g., Commissioner
for Railways v. Quinlan (1964) AC 1054.). The result of the
development of the modern law of negligence has been that ordinary
negligence has encompassed and overlain the territory in which the rule
in Rylands v. Fletcher operates. Any case in which an owner or
occupier brings onto premises or collects or keeps a "dangerous
substance" in the course of a "non-natural use" of the land will
inevitably fall within a category of case in which a relationship of
proximity under ordinary negligence principles will exist between owner
or occupier and someone whose person or property is at risk of physical
injury or damage in the event of the "escape" of the substance.
Indeed, so much was made clear in Donoghue v. Stevenson itself where
Lord Atkin referred ((123) (1932) AC at 595-596; see also, at 611-612
per Lord Macmillan.) to "the cases dealing with duties where the thing
is dangerous", as illustrating "the general principle" which he had
formulated.

32. In Commissioner for Railways (N.S.W.) v. Cardy ((124) [1960] HCA 45; (1960) 104 CLR
274 at 291.), Fullagar J commented that Donoghue v. Stevenson "in a
sense reoriented the whole law of negligence, and left perhaps few
cases which went to the root of that subject and which were not liable
to be re-examined and tested in the light of it". That approach was
reflected in judgments in this Court in a series of five cases between
1953 and 1963 ((125) Thompson v. Bankstown Corporation [1953] HCA 5[1953] HCA 5; ; (1953) 87 CLR
619; Rich v. Commissioner for Railways (N.S.W.) [1959] HCA 37; (1959) 101 CLR 135;
Commissioner for Railways (N.S.W.) v. Cardy [1960] HCA 45; (1960) 104 CLR 274;
Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR
42; Voli v. Inglewood Shire Council (1963) 110 CLR 4.), supporting
the conclusion that the old special rules concerning the duties of
occupiers to invitees, licensees and trespassers were "part of" and
"ultimately subservient" to the ordinary principles of the law of
negligence with the result that the "duty to a trespasser is a duty to
a person who may also be a neighbour in the sense in which Lord Atkin
used the word" ((126) Rich v. Commissioner for Railways (N.S.W.) (1959)
101 CLR at 159; Voli v. Inglewood Shire Council (1963) 110 CLR at 89;
and see, generally, Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614 at 646-653.).
That conclusion was denied by the Privy Council in Commissioner for
Railways v. Quinlan ((127) (1964) AC 1054 at 1081.) where their
Lordships commented that they could not "find any line of reasoning by
which the limited duty that an occupier owes to a trespasser (under the
old special rules could) co-exist with the wider general duty of care
appropriate to the Donoghue v. Stevenson formula". It is, however,
now fully reinstated in the common law of this country by Australian
Safeway Stores Pty. Ltd. v. Zaluzna ((128) (1987) 162 CLR 479 at
484-488 per Mason, Wilson, Deane and Dawson JJ) where it was held
that the old inflexible rules defining the duty of an occupier of land
to an invitee, a licensee and a trespasser have been absorbed by the
principles of ordinary negligence. Inevitably, the question arises
whether the special rule in Rylands v. Fletcher has similarly been so
absorbed.

33. Some of the considerations favouring an affirmative answer to
that question have already been identified: the fact that, unlike the
old rule regulating an occupier's liability to a visitor, the rule in
Rylands v. Fletcher has never been seen as an exclusive determinant of
liability with the result that ordinary negligence has overlain the
whole area in which the rule operates; the uncertainties about the
content of the rule, including the quite unacceptable uncertainty of
the requirement of "non-natural", "special" or "not ordinary" use; the
difficulties in its application; and the reluctance of the courts to
accept and apply it. To them must be added the fact that, like the
old special rules defining the liability of an occupier to invitees,
licensees and trespassers, some of the distinctions upon which the
rule is based are unreasonably arbitrary. Thus, for example, the
decision in Read v. J Lyons and Co. Ltd. would indicate that
liability under the rule to two persons in otherwise identical
circumstances who were injured by an explosion when entering premises
would be different if, at the time of the explosion, one person had
paused and allowed the other to cross the threshold. Indeed, it would
seem at least arguable that liability in the case of a single plaintiff
who was so injured could be confined by reference to which of the
directly injured parts of his or her body remained physically outside
the premises at the instant of the explosion.

34. The main argument supporting the preservation of the rule in
Rylands v. Fletcher as a discrete or independent area of the law of
torts is the argument that the rule cannot be accommodated within the
principles of ordinary negligence without denying liability in cases
where it would otherwise exist. In considering that argument, it
is appropriate to accept a broad or expansive view of the kind of
substance or activity which may come within the reach of the rule.
Accordingly, we shall assume that the rule extends to the introduction
or retention of any dangerous substance or the carrying out of any
dangerous activity upon or within property under the occupation or
control of the defendant.

35. Inevitably, the past adjustments and qualifications of the rule
in Rylands v. Fletcher to reflect aspects of the law of ordinary
negligence have greatly reduced the likelihood that Rylands v.
Fletcher liability will exist in a case where liability would not
exist under the principles of negligence. Thus, the editors of the
last five editions of Winfield and Jolowicz on Tort ((129) See, e.g.,
Jolowicz, Ellis Lewis and Harris, 9th ed. (1971) at 388, 390; Rogers,
13th ed. (1989) at 443.) have expressed the view that, putting to one
side the factual situations in which a plaintiff will succeed equally
well either under the rule or in nuisance, "(w)e have virtually reached
the position where a defendant will not be considered liable when he
would not be liable according to the ordinary principles of
negligence." A similar view has been expressed by other distinguished
academic writers. Nonetheless, there remains the perception of an
underlying antithesis between the rule in Rylands v. Fletcher and the
principles of negligence. Liability under the rule is still
theoretically seen as "strict liability" in the sense that it can arise
without personal fault whereas liability in negligence is fault
liability, that is to say, liability flowing from breach of a duty owed
by the defendant to the plaintiff. The judicial transformation of
Blackburn J's requirement of "not naturally there" into a test of
"special" and "not ordinary" use and the expanded defences to a Rylands
v. Fletcher claim have, as has been seen, deprived that perception of
underlying antithesis of some of its theoretical validity and most of
its practical significance. However, as Professor Thayer indicated in
a posthumous article published in the Harvard Law Review in 1916 ((130)
"Liability without Fault", (1916) 29 Harvard Law Review at 801.), the
final answer to any argument based on that perceived theoretical
contrast lies in ordinary negligence's concepts of a "non-delegable"
duty and a variable standard of care.

The "non-delegable" duty

36. As was pointed out in the majority judgment in Cook v. Cook ((131)
(1986) 162 CLR at 382.), "(t)he more detailed definition of the
objective standard of care (under the ordinary law of negligence) for
the purposes of a particular category of case must necessarily depend
upon the identification of the relationship of proximity which is the
touchstone and control of the relevant category." It has long been
recognized that there are certain categories of case in which a duty
to take reasonable care to avoid a foreseeable risk of injury to
another will not be discharged merely by the employment of a qualified
and ostensibly competent independent contractor. In those categories
of case, the nature of the relationship of proximity gives rise to a
duty of care of a special and "more stringent" kind, namely a "duty to
ensure that reasonable care is taken" ((132) See Kondis v. State
Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 686.). Put differently,
the requirement of reasonable care in those categories of case extends
to seeing that care is taken. One of the classic statements of the
scope of such a duty of care remains that of Lord Blackburn in Hughes
v. Percival ((133) (1883) 8 App Cas 443 at 446.):

"that duty went as far as to require (the defendant) to see
that reasonable skill and care were exercised in those
operations ... If such a duty was cast upon the defendant
he could not get rid of responsibility by delegating the
performance of it to a third person. He was at liberty to
employ such a third person to fulfil the duty which the law
cast on himself ... but the defendant still remained subject
to that duty, and liable for the consequences if it was not
fulfilled."

In Kondis v. State Transport Authority ((134) (1984) 154 CLR at
679-687; and see, also, Stevens v. Brodribb Sawmilling Co. Pty. Ltd.
(1986) 160 CLR at 44 per Wilson and Dawson JJ), in a judgment with
which Deane J and Dawson J agreed, Mason J identified some of the
principal categories of case in which the duty to take reasonable care
under the ordinary law of negligence is non-delegable in that sense:
adjoining owners of land in relation to work threatening support or
common walls; master and servant in relation to a safe system of work;
hospital and patient; school authority and pupil; and (arguably),
occupier and invitee. In most, though conceivably not all, of such
categories of case, the common "element in the relationship between
the parties which generates (the) special responsibility or duty to
see that care is taken" is that "the person on whom (the duty) is
imposed has undertaken the care, supervision or control of the person
or property of another or is so placed in relation to that person or
his property as to assume a particular responsibility for his or its
safety, in circumstances where the person affected might reasonably
expect that due care will be exercised" ((135) Kondis v. State
Transport Authority (1984) 154 CLR at 687; see, also, Stevens v.
Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR at 31, 44-46.). It
will be convenient to refer to that common element as "the central
element of control". Viewed from the perspective of the person to whom
the duty is owed, the relationship of proximity giving rise to the
non-delegable duty of care in such cases is marked by special
dependence or vulnerability on the part of that person ((136) The
Commonwealth v. Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 271 per Mason J).

37. The relationship of proximity which exists, for the purposes
of ordinary negligence, between a plaintiff and a defendant in
circumstances which would prima facie attract the rule in Rylands v.
Fletcher is characterized by such a central element of control and
by such special dependence and vulnerability. One party to that
relationship is a person who is in control of premises and who has
taken advantage of that control to introduce thereon or to retain
therein a dangerous substance or to undertake thereon a dangerous
activity or to allow another person to do one of those things. The
other party to that relationship is a person, outside the premises and
without control over what occurs therein, whose person or property is
thereby exposed to a foreseeable risk of danger ((137) "which he knows
to be mischievous if it gets on his neighbour's (property)": Fletcher
v. Rylands (1866) LR 1 Ex at 280; see above, fn.(120).). In such a
case, the person outside the premises is obviously in a position of
special vulnerability and dependence. He or she is specially
vulnerable to danger if reasonable precautions are not taken in
relation to what is done on the premises. He or she is specially
dependent upon the person in control of the premises to ensure that
such reasonable precautions are in fact taken. Commonly, he or she
will have neither the right nor the opportunity to exercise control
over, or even to have foreknowledge of, what is done or allowed by the
other party within the premises. Conversely, the person who introduces
(or allows another to introduce) the dangerous substance or undertakes
(or allows another to undertake) the dangerous activity on premises
which he or she controls is "so placed in relation to (the other)
person or his property as to assume a particular responsibility for his
or its safety".

38. It follows that the relationship of proximity which exists in the
category of case into which Rylands v. Fletcher circumstances fall
contains the central element of control which generates, in other
categories of case, a special "personal" or "non-delegable" duty of
care under the ordinary law of negligence. Reasoning by analogy
suggests, but does not compel, a conclusion that that common element
gives rise to such a duty of care in the first-mentioned category of
case. There are considerations of fairness which support that
conclusion, namely, that it is the person in control who has
authorized or allowed the situation of foreseeable potential danger
to be imposed on the other person by authorizing or allowing the
dangerous use of the premises and who is likely to be in a position
to insist upon the exercise of reasonable care. It is also supported
by considerations of utility: "the practical advantage of being
conveniently workable, of supplying a spur to effective care in the
choice of contractors, and in pointing the victim to a defendant who
is easily discoverable and probably financially responsible" ((138)
Thayer, op.cit. at 809.). The weight of authority confirms that the
duty in that category of case is a non-delegable one.

39. Thus, in Black v. Christchurch Finance Co. ((139) (1894) AC 48.), the
plaintiff sustained damage when a fire, which had been negligently lit
by an independent contractor on the defendant's land, spread to the
plaintiff's land. It was assumed by the Privy Council ((140) ibid. at
56.) that, in lighting the fire at the time he did, the independent
contractor was acting in "violation of the terms of the contract"
between the defendant and himself. Nonetheless, it was held that the
defendant was liable. Their Lordships found it unnecessary to address
the question whether the case fell within the rule in Rylands v.
Fletcher and was therefore one of "strict liability". Indeed, neither
the report of argument nor the judgment contains any reference to
Rylands v. Fletcher or cases dealing with the escape of dangerous
substances. Nor did their Lordships invoke any special rule relating to
escape of fire. The basis of their Lordships' decision was that, in
the context of the dangerous activity on its land, the defendant had
been under a non-delegable duty "to use all reasonable precautions" of
the kind identified in Hughes v. Percival. In that regard, using
language appropriate to ordinary negligence but not to strict
liability, their Lordships said ((141) ibid. at 54.):

"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). And if he authorizes another to act
for him he is bound, not only to stipulate that such
precautions shall be taken, but also to see that these are
observed, otherwise he will be responsible for the
consequences. See Hughes v. Percival and authorities there
cited." (emphasis added)

40. Black v. Christchurch Finance Co. was followed by this Court in
McInnes v. Wardle ((142) [1931] HCA 40; (1931) 45 CLR 548.). There again, the
plaintiff's property had been damaged when fire spread to his land from
the defendant's land. The fire had been lit to burn bracken on the
defendant's land by an independent contractor whom the defendant had
engaged to fumigate rabbits on the property and to do some other work.
It was found by the trial judge that, notwithstanding that the burning
of scrub at that time of the year was an unlawful and dangerous
activity, the defendant knew, or ought reasonably to have known, that
fire would be employed if, as was likely, its use was found necessary
or expedient in the opinion of the independent contractor ((143) See
ibid. at 551 but note that Gavan Duffy CJ and Starke J expressed the
view (at 550) that it would be irrelevant if the independent contractor
had not complied with or had abused the "conditions of authority".).
Rylands v. Fletcher was not mentioned in argument or in any of the
judgments. Gavan Duffy CJ and Starke J (in a joint judgment) and
Evatt J and McTiernan J (in individual judgments) all concluded that
the defendant was liable on the ground that, in the circumstances of
the case, he owed a non-delegable duty of care, of the kind which had
been held to exist in Hughes v. Percival and Black v. Christchurch
Finance Co., which required him to ensure that the independent
contractor exercised "reasonable care" ((144) ibid. at 552 per Evatt
J) (emphasis added) or took "reasonable precautions" ((145) ibid. at
550 per Gavan Duffy CJ and Starke J: "all reasonable precautions"
and 556 per McTiernan J: "every reasonable precaution".) (emphasis
again added). The other member of the Court, Dixon J, also referred
to the "duty of an occupier to take care that his land is so used and
the operations carried out upon it are so managed that his neighbours
are not exposed to injury by exceptional dangers" (emphasis added)
((146) ibid. at 552; but note Dixon J's reference to Rainham Chemical
Works Ltd. v. Belvedere Fish Guano Co. (1921) 2 AC 465.). Again, in
Torette House Pty. Ltd. v. Berkman ((147) (1940) 62 CLR at 655.),
Dixon J would seem to have accepted that dangerous use of land will
give rise to such a personal or non-delegable duty of care on the part
of the occupier under the principles of ordinary negligence. In that
case, the independent contractor had not been employed by the defendant
in the defendant's capacity of occupier of the premises from which
water had escaped. He had been employed, as Dixon J pointed out
((148) ibid.), "to do some work at the fittings of the shop further
down the street". In concluding that, in the circumstances, the
defendant was not liable under general principles for the negligence of
his independent contractor, his Honour commented ((149) ibid.):

"But the case cannot be treated as one where an occupier
allows an independent contractor so to use or deal with his
premises that they become a source of harm to his
neighbour."

The degree of care

41. Where a duty of care arises under the ordinary law of negligence,
the standard of care exacted is that which is reasonable in the
circumstances. It has been emphasised in many cases that the degree
of care under that standard necessarily varies with the risk involved
and that the risk involved includes both the magnitude of the risk of
an accident happening and the seriousness of the potential damage if
an accident should occur ((150) See, e.g., Thompson v. Bankstown
Corporation (1953) 87 CLR at 645; Wyong Shire Council v. Shirt [1980] HCA 12[1980] HCA 12; ; (1980)
146 CLR 40 at 47-48.). Even where a dangerous substance or a
dangerous activity of a kind which might attract the rule in Rylands v.
Fletcher is involved, the standard of care remains "that which is
reasonable in the circumstances, that which a reasonably prudent man
would exercise in the circumstances" ((151) Adelaide Chemical and
Fertilizer Co. Ltd. v. Carlyle [1940] HCA 44; (1940) 64 CLR 514 at 523.). In the
case of such substances or activities, however, a reasonably prudent
person would exercise a higher degree of care. Indeed, depending upon
the magnitude of the danger, the standard of "reasonable care" may
involve "a degree of diligence so stringent as to amount practically to
a guarantee of safety" ((152) Donoghue v. Stevenson (1932) AC at 612
per Lord Macmillan; Adelaide Chemical and Fertilizer Co. Ltd. v.
Carlyle (1940) 64 CLR at 523 per Starke J; and, generally, Stevens v.
Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR at 30, 42.).

43. The qualification mentioned in the preceding paragraph is that
there may remain cases in which it is preferable to see a defendant's
liability in a Rylands v. Fletcher situation as lying in nuisance (or
even trespass) and not in negligence ((161) See, e.g., Northwestern
Utilities Ltd. v. London Guarantee and Accident Co. (1936) AC at 119;
Cambridge Water Co. v. Eastern Counties Leather Plc. (1994) 2 WLR 53;
and, generally, Newark, op.cit.). It follows that the main
consideration favouring preservation of the rule in Rylands v.
Fletcher, namely, that the rule imposes liability in cases where it
would not otherwise exist, lacks practical substance. In these
circumstances, and subject only to the above-mentioned possible
qualification in relation to liability in nuisance, the rule in
Rylands v. Fletcher, with all its difficulties, uncertainties,
qualifications and exceptions, should now be seen, for the purposes of
the common law of this country, as absorbed by the principles of
ordinary negligence. Under those principles, a person who takes
advantage of his or her control of premises to introduce a dangerous
substance, to carry on a dangerous activity, or to allow another to
do one of those things, owes a duty of reasonable care to avoid a
reasonably foreseeable risk of injury or damage to the person or
property of another. In a case where the person or property of the
other person is lawfully in a place outside the premises that duty of
care both varies in degree according to the magnitude of the risk
involved and extends to ensuring that such care is taken. It is
unnecessary for the purposes of the present case to express a
concluded view on the question whether the duty of care owed, in
such circumstances, to a lawful visitor on the premises is likewise
a non-delegable one. The ordinary processes of legal reasoning by
analogy, induction and deduction would prima facie indicate that it
is. Like Windeyer J in Benning v. Wong ((162) See above, fn.(117).),
we have added the qualifications "lawfully" and "lawful" to reserve the
position of, rather than to exclude, the unlawful plaintiff.

The Present Case

44. The difference of opinion between the learned trial judge and
the members of the Full Court about whether the circumstances of the
present case attracted the rule in Rylands v. Fletcher resulted from
the fact that the trial judge considered that the rule's requirement
of "non-natural use" was not satisfied while the Full Court concluded
that it was. That disagreement between the trial judge and the
members of the Full Court is not surprising in the context of the
"rough sea of contradictory authority" ((163) Smeaton v. Ilford
Corporation (1954) Ch 450 at 478 per Upjohn J) in which one can find
powerful support for both the proposition that the escape of the
contents of an ordinary privy satisfies the requirements of the rule
((164) See Fletcher v. Rylands (1866) LR 1 Ex at 279-280; and see,
generally, Smeaton v. Ilford Corporation (1954) Ch at 466-479.) and
the proposition that the manufacture of high-explosives does not
necessarily satisfy the requirement of "non-natural" use ((165) Read v.
J Lyons and Co. Ltd. (1947) AC at 169-170, 174, 186-187.).
Fortunately, our conclusion that the rule in Rylands v. Fletcher has
been absorbed by the principles of ordinary negligence makes it
unnecessary to attempt to derive from the decided cases some basis in
principle for answering the question whether the welding activities in
the circumstances of the present case were or were not a "non-natural"
or "special" use of the Authority's premises. The critical question
for the purposes of applying the principles of ordinary negligence to
the circumstances of the present case is whether the Authority took
advantage of its occupation and control of the premises to allow its
independent contractor to introduce or retain a dangerous substance or
to engage in a dangerous activity on the premises. The starting point
for answering that question must be a consideration of what relevantly
constitutes a dangerous substance or activity.

45. In the context of the ordinary law of negligence, the character
of "dangerous" is not confined to those classes of things, such as
poison, a loaded gun or explosives, which are "inherently dangerous"
or "dangerous in themselves". This point was made by Lord Atkin in
Donoghue v. Stevenson ((166) (1932) AC at 595-596.):

"I do not find it necessary to discuss at length the cases
dealing with duties where the thing is dangerous, or, in the
narrower category, belongs to a class of things which are
dangerous in themselves. I regard the distinction as an
unnatural one so far as it is used to serve as a logical
differentiation by which to distinguish the existence or
non-existence of a legal right. In this respect I agree
with what was said by Scrutton LJ in Hodge and Sons v.
Anglo-American Oil Co. ((167) (1922) 12 Ll L Rep 183 at 187.), a
case which was ultimately decided on a question of fact.
'Personally, I do not understand the difference between a thing
dangerous in itself, as poison, and a thing not dangerous as a
class, but by negligent construction dangerous as a particular
thing. The latter, if anything, seems the more dangerous of the
two; it is a wolf in sheep's clothing instead of an obvious
wolf.' The nature of the thing may very well call for
different degrees of care, and the person dealing with it
may well contemplate persons as being within the sphere
of his duty to take care who would not be sufficiently
proximate with less dangerous goods; so that not only the
degree of care but the range of persons to whom a duty is
owed may be extended. But they all illustrate the general
principle."

The fact that a particular substance or a particular activity can be
seen to be "inherently" or "of itself" likely to do serious injury or
cause serious damage will, of course, ordinarily make characterization
as "dangerous" more readily apparent. That fact does not, however,
provide a criterion of what is and what is not dangerous for the
purpose of determining whether the duty of a person in occupation or
control of premises to take care to avoid injury or damage outside the
premises is or is not a delegable one. It suffices for that purpose
that the combined effect of the magnitude of the foreseeable risk of
an accident happening and the magnitude of the foreseeable potential
injury or damage if an accident does occur is such that an ordinary
person acting reasonably would consider it necessary to exercise
special care or to take special precautions in relation to it.

47. In the present case, the particular qualities of EPS made the
stacked cardboard containers of Isolite in the roof area of the
Authority's premises a dangerous substance in the sense that, if
one of the cardboard containers were accidentally set alight, an
uncontrollable conflagration would almost inevitably result ((169) cf.
Lord Sumner's description, in Rainham Chemical Works Ltd. v. Belvedere
Fish Guano Co. (1921) 2 AC at 479, of dinitrophenol as a "dangerous
explosive" notwithstanding that "a hot flame is needed to explode it".).
Clearly, the introduction of more than twenty of those cardboard
containers called for special precautions to be taken to avoid any
risk of that happening. A fortiori, the carrying out of welding
activities in the premises within which the cardboard containers of
Isolite were stacked was itself a dangerous activity in that it was
reasonably foreseeable that, unless special precautions were taken,
sparks or molten metal might fall upon one of the containers and set
the cardboard alight.

48. As has been seen, the evidence established that the Authority
(through one of its employees) was aware that the cardboard containers
of Isolite were being stored in the roof area near where welding work
was to be carried out by W. and S. It is, however, unnecessary that
that was so. It suffices for present purposes that the Authority
engaged and authorized its independent contractor to carry out work
within its premises which required both the introduction of such large
quantities of EPS to the premises and the carrying out of extensive
welding work within the premises. It has not been suggested that it
was not reasonably foreseeable that the large quantities of EPS which
W. and S. was authorized and required by the Authority to use would be
contained in a combustible container such as cardboard. To the
contrary, the evidence established that the Isolite had been used in
Stage 1 of the building and, as has been said, that an employee of the
Authority actually saw the cardboard containers being raised into the
roof of the premises. In these circumstances, the overall work which
the independent contractor was engaged to carry out on the premises
was a dangerous activity in that it involved a real and foreseeable
risk of a serious conflagration unless special precautions were taken
to avoid the risk of serious fire. It was obvious that, in the event
of any serious fire on the premises, General's frozen vegetables would
almost certainly be damaged or destroyed. In these circumstances,
the Authority, as occupier of those parts of the premises into which
it required and allowed the Isolite to be introduced and the welding
work to be carried out, owed to General a duty of care which was
non-delegable in the sense we have explained, that is to say, which
extended to ensuring that its independent contractor took reasonable
care to prevent the Isolite being set alight as a result of the
welding activities. It is now common ground that W. and S. did not
take such reasonable care.

49. It follows that the Authority was liable to General pursuant to
the ordinary principles of negligence for the damage which General
sustained. The appeal must be dismissed.

BRENNAN J The Burnie Port Authority ("BPA"), a statutory body
incorporated under the Marine Act 1976 (Tas.), had a cold store
building on its land at Burnie. It contained three cold rooms.
General Jones Pty. Ltd. ("General Jones") occupied these cold rooms
under licence from BPA, using them for the storage of frozen
vegetables. BPA undertook an extension of the cold store building by
adding two further rooms (rooms 4 and 5) to the eastern end of the
building. This extension was known as Stage 2. The licence granted
to General Jones contained a clause relating to the extension:

"It is hereby agreed that the Board may extend the cold
store building and use in connection therewith the
refrigeration equipment presently used for the purpose of
the said premises".

BPA, acting as its own contractor, engaged Wildridge and Sinclair Pty.
Ltd. ("WS") to install electrical and refrigeration services to the
extension. This work involved welding and the lagging of pipes
between the cold room extension and the refrigeration units. While
this work was being carried out by employees of WS on 20 December
1979, a fire broke out and destroyed most of the cold store building.

2. General Jones brought an action in the Supreme Court of Tasmania
against BPA and WS claiming damages against each of them for the loss
of vegetables and plant and consequential loss. Neasey J entered
judgment for the plaintiff against each of the defendants for damages
to be assessed. An appeal to the Full Court of the Supreme Court of
Tasmania was dismissed.

3. The cold store building in which the fire occurred was rectangular
in shape. The walls and ceiling in each of the refrigerated rooms,
including rooms 4 and 5, were made from panels of expanded polystyrene
or EPS (an insulating material) between thin steel or aluminium
sheets. Steel portal frames stood at approximately 8.3m centres. The
above-ceiling shape of the portals was an inverted V enclosing a "roof
void" (as it was described) of approximately 3m in height between the
apex and the ceiling of the refrigerated rooms. The walls of the
refrigerated rooms were attached to a light steel framework and the
ceilings of the rooms were attached to chains hanging from the roof.
The exterior of the building consisted of outer walls and a roof of
asbestos cement sheeting. There were asbestos cement gables at either
end of the roof void. There was a gap of approximately 1m around the
perimeter of the ceiling which allowed the passage of air from outside
the building across the top of the ceiling.

4. On the day before the fire, employees of WS moved into the roof
void 20 to 30 large cardboard cartons containing blocks of EPS having
the trade name "Isolite". The Isolite was to be used as lagging
around the pipes that carried refrigerant between the refrigeration
units and the cold rooms. The seat of the fire was in a stack of
Isolite cartons about 2m high near the eastern end of the roof void.

5. It is difficult to set fire to Isolite; it tends to shrink away
from a heat source to which it is exposed. Further, chemicals which
act to retard the initial establishment of flame are often added in
the manufacture of EPS. However, constant exposure of Isolite to a
sufficient heat source (such as burning cartons) may lead to the
Isolite catching fire. Once it is ignited, the Isolite is highly
flammable (in layman's terms, it is about twice as flammable as soft
wood) and fire retardants have little or no effect. A short time
before the fire, an employee of WS was welding a metal plate in close
proximity to the stack of cartons. About 10 to 15 minutes after he
stopped welding, some flames were noticed at one corner of the stack
of cartons. The alarm was raised and employees of WS tried to
extinguish the flames. However, the fire took hold and spread
rapidly, and when it became apparent that their efforts were
inadequate, the employees fled and the fire quickly engulfed the
building.

6. Neasey J found that, on the balance of probabilities, the fire
was caused by the falling of sparks or particles of molten metal,
which had been emitted from welding carried on by an employee of WS,
onto the cardboard cartons of Isolite. The sparks or particles set
fire to the cardboard and thus the Isolite was ignited. His Honour
held that WS were liable in negligence to the respondent. He found
that such negligence consisted, in substance, of carrying out welding
operations without taking adequate precautions, such as moving the
stack of cartons containing the Isolite beyond the range of the
welding operations or covering the cartons to protect them from sparks
and pieces of hot metal. The precautions were elementary. As his
Honour found, "the employees of WS chose to store these cartons of
Isolite, though there was no need and no good reason to do so, close
to their intended welding site, where there would according to
ordinary welding practice taught to every apprentice in the trade be
danger of fire when the welding took place." His Honour also found
that WS was negligent in failing to keep a watch around the site of
the welding operations after the welding had finished, and in failing
to ensure that adequate fire-fighting equipment was available to
control or extinguish any fire. The findings of the trial judge as to
the negligence of WS in carrying out the welding operations were not
challenged on appeal.

7. The present appeal concerns the liability of BPA to General Jones
for damage resulting from the fire caused by the negligence of WS. WS
was BPA's independent contractor, not its servant. Neasey J held
that BPA was liable to General Jones by reason of a proposition which
he stated in these terms:

"an occupier of land is liable for damage caused by the
spread of fire from his land caused by the negligence of
his independent contractor."

This proposition was supported by reference to a rule of ancient
origin (the "ignis suus" or "his (or her) fire" rule) which found
modern expression in the judgment of Lord Denning MR in H and N
Emanuel Ltd. v. Greater London Council ((170) (1971) 2 All ER 835 at
838-839.). General Jones had founded its claim against BPA on two
other bases, each of which was rejected by Neasey J He rejected
General Jones's submission that BPA was liable under the rule in
Rylands v. Fletcher ((171) (1866) LR 1 Ex 265; on appeal (1868) LR 3 HL
330.) on the ground that welding was not a non-natural use of BPA's
premises. He also rejected a submission that BPA was liable in
negligence. Although BPA had failed to provide adequate fire-fighting
equipment, his Honour held that the fire was so intense that
fire-fighting equipment would have been of no avail. Accordingly, he
held that BPA was not guilty of any effective negligence. To the
extent of BPA's liability to General Jones, BPA was held to be entitled
to an indemnity from WS. His Honour also held WS liable in negligence
for the loss suffered by BPA.

8. In the Full Court, BPA successfully attacked the very existence
of the tort of ignis suus under which Neasey J had held BPA liable.
A majority of the Full Court (Crawford and Zeeman JJ) held that the
tort of ignis suus had been absorbed by the rule in Rylands v.
Fletcher. However, the Full Court held BPA liable under the rule in
Rylands v. Fletcher, finding that it was a non-natural use of BPA's
premises to weld in the roof void near the stacked cartons of Isolite.
Referring to Neasey J's finding that the employees of WS had failed to
take precautions elementary in the welding trade Zeeman J said:

"The failure by WS's employee to take such precautions,
leads me to the conclusion that the particular welding
operations did not amount to a natural user of the land,
but amounted to a non-natural user."

9. On appeal by BPA to this Court, it was submitted on behalf of
General Jones that the facts found by Neasey J supported the judgment
in its favour on one or more of three bases: (i) the tort of ignis
suus; (ii) the rule in Rylands v. Fletcher; (iii) the tort of
negligence consisting, in this case, of a breach of a duty of care
owed by BPA directly to General Jones. These were the bases which
Bankes LJ in Musgrove v. Pandelis ((172) (1919) 2 KB 43 at 46, 47.)
had identified as separate heads of liability for damage done by escape
of fire originating on the defendant's land. In England, the three
separate heads have been criticized ((173) See the discussion by
MacKenna J in Mason v. Levy Auto Parts of England Ltd. (1967) 2 QB 530
at 540, 541.) on the ground that the common law provided but a single
head of liability, stated in terms derived from the ancient rule of
ignis suus.

Ignis suus

10. The earliest expression of this tort appears in Beaulieu v.
Finglam ((174) (1401) YB 2 Hen 4, f.18, pl.6; Fifoot, History and
Sources of the Common Law, (1949) at 166-167.) where Markham J said:

"I shall answer to my neighbour for each person who enters
my house by my leave or my knowledge, or is my guest
through me or through my servant, if he does any act, as
with a candle or aught else, whereby my neighbour's house
is burnt. But if a man from outside my house and against
my will starts a fire in the thatch of my house or
elsewhere, whereby my house is burned and my neighbours'
houses are burned as well, for this I shall not be held
bound to them; for this cannot be said to be done by wrong
on my part, but is against my will."

A later case, in 1697, was Turberville v. Stampe ((175) [1792] EngR 145; (1697) 1 Ld
Raym 264 (91 ER 1072).) where it was held that a person might be
liable for the escape of fire from his field as he would be for the
escape of fire from his house. In Mason v. Levy Auto Parts of England
Ltd. ((176) (1967) 2 QB at 540.) Mackenna J stated the common law
rule in broad terms:

"A person from whose land a fire escaped was held liable to
his neighbour unless he could prove that it had started or
spread by the act of a stranger or of God."

And in Hazelwood v. Webber ((177) [1934] HCA 62; (1934) 52 CLR 268 at 274-275.) it
was said that:

"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."

11. The liability for escape of fire was qualified at first by an
Act of 1707 ((178) 6 Anne c.31, s.6.) and then by The Fire Prevention
(Metropolis) Act 1774 ((179) 14 Geo.3 c.78.), s.86. In Tasmania, that
provision is enacted by s.11(15) of the Supreme Court Civil Procedure
Act 1932 (Tas.), which provides:

" No action or process may be had, maintained, or
prosecuted against a person on whose land a fire
accidentally begins, and he shall not be required to make
recompense for any damage suffered thereby, any law, usage,
or custom to the contrary notwithstanding."

The legislation protects the defendant from liability in a
case of fires which begin "accidentally", a term discussed by
Lord Goddard CJ in Balfour v. Barty-King ((180) (1957) 1 QB 496 at
504.):

" The precise meaning to be attached to 'accidentally'
has not been determined, but ... where the fire is caused
by negligence it is not to be regarded as accidental.
Although there is a difference of opinion among eminent
text writers whether at common law the liability was
absolute or depended on negligence, at the present day it
can safely be said that a person in whose house a fire is
caused by negligence is liable if it spreads to that of his
neighbour, and this is true whether the negligence is his
own or that of his servant or his guest, but he is not
liable if the fire is caused by a stranger."

This accords with the view of Higgins J who said in Bugge v.
Brown ((181) [1919] HCA 5; (1919) 26 CLR 110 at 130.) that the statute limited
liability to cases of negligence, though the negligence may be on the
part of employees or independent contractors.

12. The modern English statement of the rule appears in the judgment
of Lord Denning MR in H and N Emanuel Ltd. v. Greater London
Council ((182) (1971) 2 All ER at 838.):

"the occupier of a house or land is liable for the escape
of fire which is due to the negligence not only of his
servants, but also of his independent contractors and of
his guests, and of anyone who is there with his leave or
licence. The only circumstances when the occupier is not
liable for the negligence is when it is the negligence of a
stranger."

His Lordship explained the contemporary law in these terms ((183) ibid.
at 839.):

"The liability of the occupier can be said to be a strict
liability in this sense that he is liable for the
negligence not only of his servants but also of independent
contractors and, indeed, of anyone except a 'stranger'. By
the same token it can be said to be a 'vicarious
liability', because he is liable for the defaults of others
as well as his own. It can also be said to be a liability
under the principle of Rylands v. Fletcher, because fire is
undoubtedly a dangerous thing which is likely to do damage
if it escapes. But I do not think it necessary to put it
into any one of these three categories."

If Australian law had marched in step with English law, BPA's
liability to General Jones would have been established simply on
account of the negligence of BPA's independent contractor which
started the fire. This was indeed the basis on which Neasey J had
held BPA liable. But Australian law took its own path, repudiating
the ignis suus basis of liability as inappropriately rigorous.

13. It may have been that the natural and social conditions of this
wide brown continent made the ignis suus rule an impossible burden
for those who live in rural areas, especially in the early days of
settlement. It would have been intolerable to impose an absolute
liability on a landholder for the escape of any fire lit negligently
by whosoever came upon his land by his leave and licence. Such a rule
might have generally restricted the tradition of hospitality in the
bush and would have been a disincentive to pastoralists to allow
Aboriginal communities to camp on their holdings. Whatever the reason
for rejecting the rule of ignis suus, in Bugge v. Brown Isaacs J
rejected a contention based on Beaulieu v. Finglam that an owner of
land is liable for escape of any fire "kindled or kept by his servant
whether negligently or not, and whether or not in the course of his
employment". His Honour said ((184) (1919) 26 CLR at 115.) that "the
rigorous proposition so contended for cannot now be maintained". In
that case the fire was lit by a pastoral employee to cook his meat
while he was out working on a station and the fire escaped by his
negligence. The defendant was held liable in that case, but the reason
advanced by the majority (Isaacs and Higgins JJ) for so holding was
that the lighting of the fire was within the scope of the employee's
authority and the defendant was therefore vicariously liable for the
employee's negligence. In Hazelwood v. Webber ((185) (1934) 52 CLR at
275.) the ignis suus rule was invoked but the majority (Gavan Duffy
CJ, Rich, Dixon and McTiernan JJ) held that other principles now
governed liability for escape of fire:

"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."

Windeyer J was thus able to say in Hargrave v. Goldman ((186) [1963] HCA 56; (1963)
110 CLR 40 at 58. See also per Starke J in Wise Bros. Pty. Ltd. v.
Commissioner for Railways (N.S.W.) [1947] HCA 33; (1947) 75 CLR 59 at 70.):

"This Court has held that the old rules have been absorbed
into the principle of Rylands v. Fletcher; and that the
strict liability of the common law is subject to the
qualifications of and exceptions to that principle".

It may be that the movement from strict to qualified liability in
tort, which has long been judicially noticed ((187) Stevens v. Brodribb
Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 CLR 16 at 42 per Wilson and Dawson
JJ and Read v. J Lyons and Co., Ld. [1946] UKHL 2[1946] UKHL 2; ; (1947) AC 156 at 180.), assisted
first in the statutory qualification of ignis suus ((188) See Balfour
v. Barty-King (1957) 1 QB at 503.) and later in the absorption of the
tort of ignis suus in the rule in Rylands v. Fletcher. Whatever the
explanation, the rule in Rylands v. Fletcher excluded the rule of ignis
suus as an appropriate measure of the liability of an occupier of land
or premises if damage is caused by the escape of fire. One consequence
is that an owner or occupier of land or premises is no longer liable if
a fire has been lit upon his land or premises without his authority by
a licensee other than his servant and the fire escapes without
negligence ((189) Hargrave v. Goldman (1963) 110 CLR 40; (1966) 115 CLR
458 [1966] UKPC 2; ; (1967) 1 AC 645.) on the part of that owner or occupier. The
Full Court was therefore right to reject the basis on which Neasey J
had held BPA liable. A more difficult question is whether BPA is
liable under the rule in Rylands v. Fletcher.

The rule in Rylands v. Fletcher

14. The "true rule of law", as stated by Blackburn J ((190) Fletcher v.
Rylands (1866) LR 1 Ex at 279-280.), is -

"that the person who for his own purposes brings on his
lands and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and,
if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape. He
can excuse himself by shewing that the escape was owing to
the plaintiff's default; or perhaps that the escape was the
consequence of vis major, or the act of God".

Lord Cairns LC affirmed that statement on appeal ((191) Rylands v.
Fletcher (1868) LR 3 HL at 339-340.), but he drew a distinction ((192)
ibid. at 338-339.) between "the natural user" of land and "a
non-natural use" by which he meant something brought onto the land
"which in its natural condition was not in or upon it". His Lordship
held that, as it was a non-natural use to bring water onto land and
keep it in a reservoir, the defendants kept water in their reservoir at
their peril and were liable, when the water escaped, for damage
sustained by the plaintiff into whose mine the water flowed. Although
Lord Cairns affirmed the rule stated by Blackburn J in one part of his
speech and stated the principle relating to non-natural use in another
((193) ibid. at 339.), it was understood that liability under the rule
in Rylands v. Fletcher was subject to an exception permitting natural
use of the defendant's land. The scope of that exception has been the
subject of much judicial and academic debate.

15. Before examining the exception, it is desirable first to identify
the factor which attracts liability under the rule in Rylands v.
Fletcher. This factor is the unusual and dangerous nature of what
is brought onto the defendant's land. Wright J in Noble v.
Harrison ((194) (1926) 2 KB 332 at 342; see also Leakey v. National
Trust (1980) QB 485 at 518 per Megaw L.J) cited as the "true
principle of Rylands v. Fletcher" what Fletcher Moulton LJ (as he
then was) had said in Barker v. Herbert ((195) (1911) 2 KB 633 at 642.)
:

"This is not a case where a landowner has erected or brought
upon his land something of an unusual nature, which is
essentially dangerous in itself."

Then, in Rickards v. Lothian, Lord Moulton delivering the opinion of
the Privy Council said ((196) (1913) 116 CLR 387 at 400-401; (1913) AC
263 at 280.):

"It is not every use to which land is put that brings into
play that principle. It must be some special use bringing
with it increased danger to others, and must not merely be
the ordinary use of the land or such a use as is proper for
the general benefit of the community. To use the language
of Lord Robertson in Eastern and South African Telegraph
Co. v. Cape Town Tramways Companies ((197) (1902) AC 381 at 393.)
, the principle of Fletcher v. Rylands 'subjects to a high
liability the owner who uses his property for purposes other than
those which are natural.'"

The fact that a use is dangerous is an indication that it is
non-natural. However, it was held in Rickards v. Lothian that a water
supply in a city building was an ordinary use of land - "an almost
necessary feature of town life" ((198) (1913) 16 CLR at 402; (1913) AC
at 281.). The categories of use mentioned by Lord Moulton - a
"special use bringing with it increased danger to others" and an
"ordinary use of the land or such a use as is proper for the general
benefit of the community" - have been treated as mutually exclusive,
the former category attracting liability, the latter excluding
liability. The latter category has been extended by expanding the
notion of "ordinary use" beyond the meaning which Lord Cairns
attributed to "natural use" in Rylands v. Fletcher. In Read v. J
Lyons and Co., Ld. Lord Uthwatt said ((199) (1947) AC at 187.) that
"natural" did not mean "primitive".

16. In Rickards v. Lothian the Privy Council were concerned, on the
one hand, to uphold the liability of an occupier whose "special use"
of land exposed his neighbours to an increased risk of damage and,
on the other, to exempt from liability an occupier whose use of land
amounted to no more than an ordinary and reasonable enjoyment of the
land having regard to local and contemporary practice. These objects
are not easily to be reconciled, especially when the courts do not
treat "use" as connoting a state of affairs but include within
the concept the doing of a particular act ((200) See Williams,
"Non-natural Use of Land", (1973) Cambridge Law Journal 310.). In
Hazelwood v. Webber ((201) (1934) 52 CLR at 277.), this Court stated
the scope of the rule in Rylands v. Fletcher in terms which looked to
the purpose to which the land is or the premises are being put and the
acts done incidentally to that purpose:

"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."

It is a condition of liability under Rylands v. Fletcher that by the
act of the defendant, or of some person for whose act the defendant is
responsible, there is on the defendant's land something dangerous "in
the sense that, if it escapes, it will do damage": Read v. J Lyons
and Co., Ld. ((202) (1947) AC at 176.) per Lord Porter. The act which
creates or brings the dangerous thing on the land is the use which must
be classified under one or other of Lord Moulton's categories.

17. The nature of a particular use of land depends upon the
surrounding circumstances. Thus, in Hazelwood v. Webber ((203) (1934)
52 CLR at 278.), a farmer's burning-off of stubble in mid-summer
attracted liability as a non-natural use when fire escaped, the danger
overriding the agricultural utility of the practice and the frequency
with which other farmers burnt their fields ((204) Similarly, in New
Zealand: see New Zealand Forest Products Ltd. v. O'Sullivan (1974) 2
NZLR 80 at 90.). In Torette House Pty. Ltd. v. Berkman ((205) (1940)
[1940] HCA 1; 62 CLR 637 at 654-655.) Dixon J said that, in determining the nature
of a use of the defendant's land -

"the advantage to the occupier who succeeds in the harmless
use of an agency such as a large quantity of water which is
a potential source of mischief, and the frequency of its
use by other occupiers, 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': cf. Hazelwood v. Webber ((206) (1934) 52 CLR
at 278.) . Time, place and circumstance, not excluding purpose,
are of course most material considerations."

18. The approach to be taken in determining the character of a use
was defined by Gavan Duffy CJ, Rich, Dixon and McTiernan JJ in
Hazelwood v. Webber ((207) ibid.):

"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." (Emphasis added.)

The view taken by this Court that the character of a use is "not one
to be decided by a jury" differs from the view taken by Lord Porter in
Read v. J Lyons and Co., Ld ((208) (1947) AC at 176.). He thought it
was a mere question of fact. The difference seems to me to be of some
importance. If the character of a use is a mere question of fact, the
rule in Rylands v. Fletcher would become another conquest in the
imperial expansion of the law of negligence. It would be unlikely in
practice that a different answer would be given to the question: "was
the use so fraught with risk to others as not to be a natural use?"
from the question: "was the use so fraught with risk to others that
the defendant is liable for any failure to exercise reasonable care to
prevent the escape of the dangerous thing?" There is, of course, no
legal imperative to contain the expansion of the law of negligence
but, if it were to conquer the rule in Rylands v. Fletcher, a
plaintiff who suffers loss by the escape of a dangerous thing from the
defendant's land would go remediless unless the plaintiff could prove
negligence contributing to the escape on the part of the defendant,
his servants or agents or the escape amounted to a nuisance. Under
Rylands v. Fletcher, the plaintiff can recover if the escape is caused
by negligence on the part of the defendant's independent contractor
or, more accurately, without proof of any negligence causing or
contributing to the escape. "The whole point of Rylands v. Fletcher
liability", said Menzies J in Benning v. Wong ((209) (1969) 122 CLR
249 at 278.), "is that the exercise of care is irrelevant". To
eliminate the rule in Rylands v. Fletcher and to subject all cases now
falling within that rule to the law of negligence would be to
depreciate the duty which Rylands v. Fletcher imposes on the occupiers
of land and premises and correspondingly to diminish the security which
that rule confers on their neighbours ((210) In Cambridge Water Co. v.
Eastern Counties Leather Plc. (1994) 2 WLR 53 the House of Lords has
maintained strict liability for damage in the event of escape of
harmful things from the defendant's premises where damage of the
relevant type was foreseeable if the thing should escape.).
Nevertheless, as we shall see, many cases in which a plaintiff might
recover under Rylands v. Fletcher are cases in which the plaintiff
might recover in negligence or in nuisance.

19. By remitting the question "what is a natural or special use of
land?" for determination by the judge, courts have been able to
control the scope of the liability under Rylands v. Fletcher. Thus
liability was denied under that head when an occupier of a flour mill
at Narrandera accumulated flammable dust in the manufacture of
flour ((211) Wise Bros. Pty. Ltd. v. Commissioner for Railways
(N.S.W.) (1947) 75 CLR at 68, 70, 73, 74.) and when liability for a
fire in Fremantle Harbour was sought to be imposed on the authority
which brought fuel oil for ships to a berth in the harbour ((212)
Eastern Asia Navigation Co. Ltd. v. Fremantle Harbour Trust
Commissioners (1951) 83 CLR 353 at 388, 396-397.). Conversely, in
Benning v. Wong, Windeyer J was prepared to accept on the authority of
precedent that the laying of gas pipes was a non-natural use of land
((213) (1969) 122 CLR at 302.). It is not surprising that he said
((214) ibid.) in reference to cases relating to the "non-natural" use
of land:

"Some of them seem to me to make a natural or non-natural
use of land depend not on any certain objective criteria,
but on whether it is a use of such a character that the
defendant ought, in the opinion of the court determining
the particular case, to take the risk of having a dangerous
thing where it was." (Emphasis added.)

20. Although the absence of objective criteria in the law of tort
is unsatisfactory, the question whether land or premises is being
"reasonably applied" to "an ordinary purpose" is a question which
provides the court with considerable guidance ((215) In Cambridge Water
Co. Lord Goff of Chieveley anticipated that the requirement of
foreseeability of harm by escape may make the natural user exception to
liability "easier to control" and having "a more recognizable basis of
principle". He described the storage of substantial quantities of
chemicals on industrial premises "as an almost classic case of
non-natural use": (1994) 2 WLR at 83.). And it is a
question which the court, conscious of the policy of the law and of
the effect of time, place and circumstance, and purpose or the nature
of land use, is peculiarly well suited to answer.

21. The rule in Rylands v. Fletcher has been said ((216) Rickards v.
Lothian (1913) 16 CLR at 395-396; (1913) AC at 275.) to rest on the
principle sic utere tuo ut alienium non laedas ("so use your own
property as not to injure the rights of another" ((217) Broom's Legal
Maxims, 10th ed. (1939) at 238 n.(z).) ). It imposes a duty arising
out of the use of land or premises on "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":
Hazelwood v. Webber ((218) (1934) 52 CLR at 275. Note the similarity
between "harm reasonably expected" and the requirement of
"foreseeability of damage of the relevant type" in Cambridge Water Co.).
"The foundation of the rule", Windeyer J said in Benning v. Wong
((219) (1969) 122 CLR at 298.), "is that the bringing of things with
mischievous possibilities or propensities upon land creates a duty to
confine them there. The harm they do by escaping could not occur but
for the act of bringing them to the place whence they escape." But
Rylands v. Fletcher does not impose liability on an occupier of land if
the mischievous thing is not created or brought onto the land with the
occupier's authority or kept there for the occupier's purpose. In
Hargrave v. Goldman ((220) [1963] HCA 56[1963] HCA 56; ; (1963) 110 CLR 40; on appeal [1966] UKPCHCA 2; (1966) 115 CLR
458; (1967) 1 AC 645.) where lightning
struck and lit a tree on the defendant's land whence a fire spread
after a time to neighbouring land, the defendant was held liable for
allowing the fire to spread, but his liability was found in nuisance
and in negligence, not under Rylands v. Fletcher. Although fire is a
thing likely to do mischief if it escapes, Rylands v. Fletcher was
"excluded simply because the respondent did not bring the fire upon
his land, nor did he keep it there for any purpose of his own. It
came there from the skies. And he did nothing to make its presence
there more dangerous to his neighbours." ((221) (1963) 110 CLR per
Windeyer J at 59; and see (1966) 115 CLR at 460; (1967) 1 AC at 656.)

And in McInnes v. Wardle ((222) [1931] HCA 40; (1931) 45 CLR 548.) the liability of

the farmer for escape of fire lit by his independent contractor to
assist in the fumigation of rabbits depended upon a finding that the
farmer had authorized the independent contractor to light the fire
((223) ibid. at 550, 552; see also Black v. Christchurch Finance Co.
(1894) AC 48 at 54.). By contrast, in Torette House Pty. Ltd. v.
Berkman ((224) [1940] HCA 1; (1940) 62 CLR 637.), the defendant occupier of the
premises from which the water escaped was held exempt from liability.
In that case, the escape of water which damaged the plaintiff's
premises was caused by the negligence of the defendant's plumber, an
independent contractor, who negligently turned a stopcock causing water
to flow out of an uncapped pipe in the water supply system. The
defendant was not vicariously liable for the negligence of his
independent contractor in turning on the water, nor was he liable under
Rylands v. Fletcher, for the installation of a water supply system was
a natural use of his premises.

22. In this case, Isolite packed in cardboard cartons was brought onto
BPA's premises by WS. It was not a danger unless the cartons were
ignited or heat of sufficient intensity was otherwise applied. But
the cartons of Isolite were stored near the welding site in the roof
void and there was a possibility that molten metal, spattered around
the welding site, might ignite the cartons of Isolite. BPA can be
taken to have authorized the use of the roof void for construction
purposes, including welding and bringing in Isolite to insulate the
pipes carrying refrigerant. The carrying out of welding near a stack
of cartons of Isolite and the stacking of cartons of Isolite near the
site of a welding operation were, however, acts done solely on the
initiative of the employees of WS. The employees of WS acted in
breach of such elementary precautions that it would be wrong to find
that BPA expected that they would act in that way. The authority
given by BPA to use the roof void for welding and the storage of
cartons of Isolite cannot be held to embrace an authority to use the
roof void by doing the acts which resulted in the fire. This case is
thus distinguishable from McInnes v. Wardle and Black v. Christchurch
Finance Co. where the actual setting of the fire was held to be within
the authority conferred by the defendant. The acts which caused the
Isolite to ignite were the unauthorized and negligent acts of WS, an
independent contractor. The question of BPA's liability for the acts
of the WS employees is examined in more detail later in this judgment.

23. If BPA had authorized the stacking of the cartons of Isolite near
the welding site, it would have been responsible for an unusual and
dangerous use of the premises ((225) Mason v. Levy Auto Parts of
England Ltd. (1967) 2 QB 530 at 542- 543.) and it would have been
liable to General Jones under Rylands v. Fletcher. It would have been
immaterial to that liability that BPA did not know of the danger ((226)
Rainham Chemical Works, Ld. v. Belvedere Fish Guano Co. (1921) 2 AC 465
at 471.). It can be accepted that welding carries a risk of starting a
fire if flammable materials are close by and that Isolite is, given a
sufficient source of initial heat, flammable material. No doubt,
as the Full Court held, the failure of the employees of WS to take
elementary precautions before welding - either by moving the stack of
Isolite cartons or by covering them - means that the welding operation
was not a natural use of BPA's premises, but BPA did not authorize
welding near the stack of cartons. BPA authorized the general work of
construction which included the welding and the bringing of Isolite
into the roof void for the purpose of insulating pipes, but neither of
those acts was by itself a source of danger. The welding and the
bringing of cartons of Isolite into the roof void were the accepted
incidents of the construction of the cold store extension. That work,
to which General Jones had agreed by the terms of its licence, was an
ordinary purpose to which the premises were reasonably applied by the
occupier. BPA authorized a natural use of its premises but, as it did
not authorize the acts which ignited the Isolite, it is not liable
under Rylands v. Fletcher for the damage suffered by General Jones
when the fire escaped into its premises.

24. Nevertheless, the construction work which WS had contracted to
perform - like many other construction works - exposed the owners
or occupiers of neighbouring premises to a risk of damage if the
contractor or its employees should perform the work negligently.
Is a building owner liable in negligence because he authorizes an
independent contractor to perform works attended by such a risk?

Negligence

25. WS was an independent contractor which undertook part of the
construction of the cold store for BPA. The liability of BPA for
negligence on the part of WS's employees in performing that work
depends on principles which Dixon J stated in Colonial Mutual Life
Assurance Society Ltd. v. Producers and Citizens Co-operative
Assurance Co. of Australia Ltd. ((227) [1931] HCA 53; (1931) 46 CLR 41 at 48; see also
Kondis v. State Transport Authority [1984] HCA 61[1984] HCA 61; ; (1984) 154 CLR 672 at 691-692.):

" In most cases in which a tort is committed in the course
of the performance of work for the benefit of another
person, he cannot be vicariously responsible if the actual
tortfeasor is not his servant and he has not directly
authorized the doing of the act which amounts to a tort.
The work, although done at his request and for his benefit,
is considered as the independent function of the person who
undertakes it, and not as something which the person
obtaining the benefit does by his representative standing
in his place and, therefore, identified with him for the
purpose of liability arising in the course of its
performance. The independent contractor carries out his
work, not as a representative but as a principal."

There are two exceptions, or apparent exceptions, to the general rule
that an employer is not liable for a tort committed by his independent
contractor: the first, when the employer directly authorizes "the
doing of the act which amounts to a tort"; the second, when the
employer engages the independent contractor to perform a duty resting
on the employer and the independent contractor fails to perform it.
Where the employer is sought to be made liable for the negligent
conduct of an independent contractor but that conduct has not been
authorized by the employer and is not in breach of a duty of care
resting personally on the employer, the negligence is said to be
"collateral" ((228) Lord Blackburn used the term in Dalton v. Angus
(1881) 6 App Cas 740 at 829; it had been used by Pollock CB in Hole
v. Sittingbourne and Sheerness Railway Co. (1861) 6 H and N 488 at
497 [1861] EngR 170; (158 ER 201 at 204).) and creates no liability in the employer.

26. In some cases where an employer is held liable for the tort of an
independent contractor, the ground of liability can be seen clearly to
be either authorization of a negligent act ((229) As in Black v.
Christchurch Finance Co. (1894) AC at 54; McInnes v. Wardle.) or
non-performance of an employer's personal duty ((230) As in The
Commonwealth v. Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 270-271, 274-275,
279-280.), but the two grounds coalesce where the doing by an
independent contractor of an act authorized by the employer gives rise
to a duty resting on the employer personally. In such a case, the
relevant principle is that stated by Mason J in Stoneman v. Lyons
((231) [1975] HCA 59; (1975) 133 CLR 550 at 574.):

"Although the general rule is that a person is not liable
for the negligence of his independent contractor, it is
accepted that a person who owes a duty to a third party
cannot avoid responsibility for discharging that duty by
delegating performance of it to an independent contractor."

Dixon J in McInnes v. Wardle ((232) (1931) 45 CLR at 552 and cf.
Torette House Pty. Ltd. v. Berkman (1940) 62 CLR at 651.) pointed out
that an occupier of land may come under a duty by reason of acts done
by an independent contractor:

" The duty of an occupier to take care that his land is
so used and the operations carried out upon it are so
managed that his neighbours are not exposed to injury by
exceptional dangers is not confined to dangers arising from
acts of himself and his servants. (See per Littledale J
in Laugher v. Pointer ((233) (1826) 5 B and C 547 at 560 (108 ER
204 at 209).) ; per Jessel MR in White v. Jameson ((234) (1874)
LR 18 Eq 303 at 305.) ; and Rainham Chemical Works Ltd. v. Belvedere
Fish Guano Co. ((235) (1921) 2 AC 465.) )."

The general principle was stated by Cockburn CJ in Bower v.
Peate ((236) (1876) 1 QBD 321 at 326-327.):

"(A) man who orders a work to be executed, from which, in
the natural course of things, injurious consequences to his
neighbour must be expected to arise, unless means are
adopted by which such consequences may be prevented, is
bound to see to the doing of that which is necessary to
prevent the mischief, and cannot relieve himself of his
responsibility by employing some one else - whether it be
the contractor employed to do the work from which the
danger arises or some independent person - to do what is
necessary to prevent the act he has ordered to be done from
becoming wrongful. There is an obvious difference between
committing work to a contractor to be executed from which,
if properly done, no injurious consequences can arise, and
handing over to him work to be done from which mischievous
consequences will arise unless preventive measures
are adopted. While it may be just to hold the party
authorizing the work in the former case exempt from
liability for injury, resulting from negligence which he
had no reason to anticipate, there is, on the other hand,
good ground for holding him liable for injury caused by an
act certain to be attended with injurious consequences if
such consequences are not in fact prevented, no matter
through whose default the omission to take the necessary
measures for such prevention may arise."

27. There is a difficulty with this passage if it is applied in a case
where negligence is in issue. The difficulty lies in the words "is
bound to see to the doing of that which is necessary to prevent the
mischief", for those words suggest that the duty is an absolute duty
"to prevent the mischief", a duty higher than a duty to exercise
reasonable care. There are some cases, notably the rule in Rylands v.
Fletcher and the law of nuisance, where the act authorized to be done
does impose on the employer of an independent contractor a duty higher
than a duty to exercise reasonable care ((237) Don Brass Foundry Pty.
Ltd. v. Stead (1948) 48 SR (NSW) 482 at 486.). Therefore, where the
authorized act is or creates a non-natural use of land ((238) As in
McInnes v. Wardle.), or in the absence of preventive measures will
create a nuisance ((239) Matania v. National Provincial Bank Ltd.
(1936) 2 All ER 633; Dalton v. Angus (1881) 6 App Cas 740; Odell v.
Cleveland House (Limited) (1910) 26 TLR 410; cf. per Mason J in Kondis
v. State Transport Authority (1984) 154 CLR at 685.), the duty
of the employer is, in the one case, to prevent escape of the
mischievous thing or, in the other, to prevent the occurrence of the
nuisance. But the duty in negligence is not so demanding.
Cockburn CJ therefore stated the principle too broadly.

28. In Dalton v. Angus ((240) (1881) 6 App Cas at 829; see also at 791 per
Lord Selborne L.C.) Lord Blackburn adopted the general principle of
Bower v. Peate but, in Hughes v. Percival ((241) (1883) 8 App Cas 443
at 447.), he thought that Bower v. Peate might be too broadly stated
since it might be taken to impose a duty in a negligence case higher
than a duty to take reasonable care. Nevertheless, he accepted that,
as Bower v. Peate was a case of interference with the plaintiff's right
of support - a case in nuisance - it was rightly decided. His Lordship
had been careful, in Dalton v. Angus, not to define the extent of the
different duties which may devolve on an employer who, to use the words
of Cockburn CJ, "orders a work to be executed (by an independent
contractor), from which, in the natural course of things,
injurious consequences to his neighbour must be expected to arise".
Lord Blackburn said ((242) (1881) 6 App Cas at 829.):

"Ever since Quarman v. Burnett ((243) (1840) 6 M and W 499 (151 ER
509).) it has been considered settled law that one employing
another is not liable for his collateral negligence unless the
relation of master and servant existed between them. So that a
person employing a contractor to do work is not liable for the
negligence of that contractor or his servants. On the other
hand, a person causing something to be done, the doing of which
casts on him a duty, cannot escape from the responsibility
attaching on him of seeing that duty performed by
delegating it to a contractor. He may bargain with the
contractor that he shall perform the duty and stipulate for
an indemnity from him if it is not performed, but he cannot
thereby relieve himself from liability to those injured by
the failure to perform it: Hole v. Sittingbourne Railway Co.;
Pickard v. Smith ((244) [1861] EngR 71; (1861) 10 CB (NS) 470 (142 ER 535).);
Tarry v. Ashton ((245) (1876) 1 QBD 314.)."

29. The extent of the duty imposed on the employer in a particular
case is precisely the same as it would be if the act were done by the
employer. The extent of the duty therefore depends on the nature of
the liability which would attach if the injurious consequences of the
authorized act were not prevented: a duty to take reasonable care to
avoid the injurious consequences when the only tortious liability
would be for negligence; a higher duty when the tortious liability
would be for nuisance or under Rylands v. Fletcher.

30. In Stoneman v. Lyons, the plaintiff sought to impose a higher duty
on the ground that the work which the employer had authorized his
independent contractor to perform was an "extra-hazardous act". The
Court rejected the notion that the doing of an extra-hazardous act
imposed a higher duty than the duty to take reasonable care. Rather,
citing Read v. J Lyons and Co., Ld., it was said ((247) (1975) 133 CLR
at 575.) that what has to be done to perform the duty to take
reasonable care is proportioned to the danger created by the doing of
the relevant act. In Stevens v. Brodribb Sawmilling Co. Pty. Ltd.
((248) (1986) 160 CLR at 42-44.), Wilson and Dawson JJ affirmed that
proposition and cited the authorities in this Court which support it.
However, when an act done by an independent contractor and authorized
by the employer creates or increases the risk of injury to a third
party, the employer who authorizes the act brings himself into such a
relationship with the third party that he is bound to take reasonable
care to prevent the occurrence of that injury ((249) Sutherland Shire
Council v. Heyman [1985] HCA 41; (1985) 157 CLR 424 at 479.). The duty is personal
and, if it is not performed, the employer is responsible. In practice,
the act which gives rise to a duty in the employer to take reasonable
care will be one which, in the natural course of things, involves the
risk of injurious consequences to a third party. In that sense, the
act will be naturally "dangerous".

31. Where the occupier of premises engages an independent contractor
to perform on his premises work which naturally carries a risk of
damage to neighbouring premises and performance of the work results in
such damage, the employer's liability can be imposed not only by the
law of negligence but also by the law of nuisance ((250) See the cases
in fn.(239).). The duty arising under the law of negligence may then
be subsumed by the higher duty arising under the law of nuisance, but
it does not follow that the law of negligence imposes some special duty
when extra-hazardous acts are authorized. That notion was dispelled by
Stoneman v. Lyons. So far as it is material to consider the duty
arising under the law of negligence, the work done by an independent
contractor on an employer's premises will impose on the employer a duty
to take reasonable care to avoid its injurious consequences on a
neighbour's premises only if the work naturally involves a risk of
those consequences. Where injurious consequences flow from the
negligent manner in which an independent contractor does an authorized
act and not from the nature of the act which was authorized, the
employer is not liable. In Hole v. Sittingbourne and Sheerness Railway
Co. ((251) (1861) 6 H and N at 497-498 (158 ER at 204-205).) Pollock
CB said:

" Where the act complained of is purely collateral, and
arises incidentally in the course of the performance of
the work, the employer is not liable, because he never
authorized that act - the remedy is against the person who
did it. ...
But when the contractor is employed to do a particular
act, the doing of which produces mischief, another doctrine
applies."

The distinction in principle was stated by Fletcher Moulton LJ in
Padbury v. Holliday and Greenwood Limited ((252) (1912) 28 TLR 494 at
495.) in reference to what Lord Watson had said in Dalton v. Angus:

"before a superior employer could be held liable for the
negligent act of a servant of a sub-contractor it must be
shown that the work which the sub-contractor was employed
to do was work the nature of which, and not merely the
performance of which, cast on the superior employer the
duty of taking precautions." (Emphasis added.)

32. The distinction between a risk of damage arising from the nature
of the authorized work and a risk of damage arising from the manner
in which work is performed distinguishes negligence for which the
employer is liable from "collateral" or incidental negligence for
which he is not. In Torette House Pty. Ltd. v. Berkman ((253) (1939)
39 SR (NSW) 156 at 170.) Jordan CJ said:

"A person who procures the doing of an act is liable for its
actual consequences and for anything necessarily involved
in its being done whomsoever he may have procured to do it.
He is liable for the acts of any agent of his acting within
the scope of his employment. For the actual breach of any
duty owed by himself he is responsible whatever steps he
may have taken or agency he may have employed to endeavour
to prevent a breach. In certain special circumstances, if
he causes an act to be done he incurs a liability to see
that care is used to prevent injury from being caused by
methods incidentally used to produce the result, whomsoever
he may employ to produce it. But there is no general rule
that if a person employs an independent contractor to do an
inherently lawful act, he incurs liability for injury to
others occasioned by the methods incidentally employed by
the contractor in the course of its performance (these not
being methods necessarily involved in the doing of the act
and necessarily injurious), by reason only of the fact that
the act is 'dangerous,' 'hazardous,' or 'extra hazardous.'"

And in Stoneman v. Lyons, Stephen J said ((254) (1975) 133 CLR at
564.):

" An employer will, whether or not the activity is
regarded as extra-hazardous, be liable in negligence for
the consequences to third parties both of acts which he
specifically authorizes or directs and of methods not so
authorized but which are necessarily involved in performing
those acts. For the consequences of other negligent
conduct of the contractor the employer will not be liable".

Thus no duty to take reasonable care is imposed on an employer merely
because damage might be done if the independent contractor authorized
to perform an act adopts a careless method of doing it and no
liability is imposed on the employer merely because damage is done
by carelessness in the method adopted. Such carelessness on the part
of an independent contractor is the "collateral negligence" of which
Lord Blackburn spoke and for which the employer is not responsible.
It is a question of fact whether damage has been caused by collateral
negligence or by a failure to perform the duty of care resting on the
employer. It may be a question of some difficulty. The case will
fall into the latter category if the risk of damage arises from the
way in which the work will necessarily be done or from the way in
which the employer expects that it will be done ((255) As in Black v.
Christchurch Finance Co. or McInnes v. Wardle.), for in each of those
situations the incurring of the risk is authorized by the employer.
But the employer is not liable merely because it is foreseeable that
the independent contractor might, on his own initiative, adopt a
careless way of doing the work. If liability were imposed on an
employer in that situation, the employer would become a virtual
guarantor of the independent contractor's carefulness.

33. In the present case, General Jones' claim against BPA in
negligence fails for precisely the same reason as its claim under
Rylands v. Fletcher fails. BPA can be taken to have authorized
welding in the roof void and the storing of Isolite in the roof void,
for those activities were necessarily involved in constructing the
cold store extension. But neither of those activities might have been
expected to cause damage to General Jones' premises provided WS
performed the work without negligence. Damage was caused to General
Jones' premises by the dangerous act of welding near the stack of
Isolite cartons and that was a method of doing the work "incidentally
employed by the contractor". The doing of that act was "collateral"
negligence for which BPA is not liable.

34. The three bases on which General Jones put its case fail. The
appeal must be allowed, the order of the Full Court set aside and, in
lieu thereof, the appeal to that Court must be allowed and judgment
entered for BPA in the claim made against it by General Jones.

McHUGH J Burnie Port Authority ("BPA") appeals against an order of
the Full Court of the Supreme Court of Tasmania which upheld an award
of damages made in favour of the respondent, General Jones Pty.
Limited ("General Jones"). The damages were awarded for the loss
suffered by General Jones when fire spread from part of premises
occupied by BPA to another part of the premises occupied by General
Jones. The Full Court, reversing the trial judge's decision, held
that BPA was not liable under the ancient common law doctrine of
"ignis suus". However, it held that BPA was liable under the rule in
Rylands v. Fletcher ((256) (1866) LR 1 Ex 265; affd (1868) LR 3 HL
330.). In my opinion the appeal should be allowed on the ground that
BPA was not liable under the doctrine of "ignis suus", the rule in
Rylands v. Fletcher, or in negligence. No claim in nuisance was relied
upon in this Court.

The factual background

2. On 20 December 1979, a fire broke out in a cold store, owned by
BPA at Burnie in Tasmania, which was in the process of construction.
Part of the store (Stage 1) was completed. General Jones used that
part to store frozen foods. Another part of the building (Stage 2)
was under construction. The construction work was being carried
out by BPA. BPA had employed Wildridge and Sinclair Pty. Limited
("Wildridge") to lag refrigeration pipes.

3. On 20 December 1979, seven employees of Wildridge were doing
welding work in the roof of Stage 2. During the course of welding a
steel plate that was to support a refrigeration unit, sparks from the
welder ignited a stack of cartons containing Isolite. Isolite is a
highly flammable insulation material. The fire destroyed the building
within a few minutes. An employee of BPA was aware that Stage 2
contained cartons of Isolite. BPA does not dispute that Wildridge was
guilty of negligence in causing the cartons to be set alight or that
the fire escaped from Stage 2 to Stage 1 and caused damage of $2.246
million to the property of General Jones.

The "ignis suus" principle

4. The first question in the appeal is whether the "ignis suus"
principle is part of the common law of Australia. Although that
principle remains part of the common law of England, in my opinion it
is not part of the common law of Australia.

5. At common law, the occupier of premises was liable for the act
of any person who entered the occupier's house by leave or to his or
her knowledge and who did any act which caused a neighbour's house
to burn ((257) Beaulieu v. Finglam (1401) YB 2 Hen IV F.18 pl.6;
translated in Fifoot, History and Sources of the Common Law, (1949) at
166.). This was the "ignis suus" (his fire) principle. The remedy of
the person whose house was burnt was an action on the case. Debate has
ensued as to whether the plaintiff was required to prove that the fire
was the result of negligence. Support for the view that the plaintiff
had to prove negligence arises from the use of the term "negligenter"
in the form of action. However, the better view is that this
allegation was a pleader's flourish ((258) Comyns's Digest, 4th ed
(1800), vol.1 at 284-285; Winfield on Tort, 8th ed (1967) at 438.).
Turberville v. Stampe ((259) [1792] EngR 145; (1697) 1 Ld Raym 264 (91 ER 1072).),
however, established that the occupier was not liable for a fire which
was started by a stranger or by an act of God ((260) See also Becquet
v. MacCarthy (1831) 2 B and Ad 951 [1831] EngR 913[1831] EngR 913; ; (109 ER 1396).). Subsequently,
liability for purely accidental fire was abolished by statute in the
reign of Queen Anne ((261) 6 Anne c.31, s.6. In Tasmania, the relevant
enactment is the Supreme Court Civil Procedure Act 1932, s.11(15).).
But, according to a long line of authority, a fire started negligently
was not started accidentally within the meaning of the Statute of Anne
((262) Goldman v. Hargrave [1966] UKPC 2; (1967) 1 AC 645 at 664-665.).

6. Unquestionably, the "ignis suus" principle remains part of the
common law of England ((263) Balfour v. Barty-King (1957) 1 QB 496; H.
and N. Emanuel Ltd. v. Greater London Council (1971) 2 All ER 835.).
In Balfour v. Barty-King ((264) (1957) 1 QB 496.), the Court of Appeal
held that an occupier of land was liable for damage caused by the
escape of a fire resulting from the acts of independent contractors
working on the land. The Court held ((265) ibid. at 502.) that there
was a "special duty to guard against an escape of fire" which had been
established by Beaulieu v. Finglam ((266) (1401) YB 2 Hen IV f.18
pl.6.) and Turberville. In H. and N. Emanuel Ltd. v. Greater London
Council ((267) (1971) 2 All ER 835 at 838.), Lord Denning MR said:

"(T)he occupier of a house or land is liable for the escape
of fire which is due to the negligence not only of his
servants, but also of his independent contractors and of
his guests, and of anyone who is there with his leave or
licence. The only circumstances when the occupier is not
liable for the negligence is when it is the negligence of a
stranger."

7. However, the "ignis suus" principle is not part of the common law
of Australia. In this country, liability for fire is not the subject
of a special common law rule. It is covered by the rule in Rylands v.
Fletcher. At all events, that was the conclusion of Windeyer J in
Hargrave v. Goldman ((268) [1963] HCA 56; (1963) 110 CLR 40 at 58.). His Honour
cited two cases in support of that conclusion - Bugge v. Brown ((269)
[1919] HCA 5; ; (1919) 26 CLR 110.) and Hazelwood v. Webber ((270) [1934] HCA 62; (1934) 52 CLR 268.).
Counsel for General Jones claimed that these cases did not support
his Honour's conclusion. However, in my opinion they do support it.
In Hazelwood ((271) ibid. at 275.), Gavan Duffy CJ, Rich, Dixon and
McTiernan JJ, after referring to the common law principle of liability
for fire, said:

"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."

8. This wider general rule was clearly a reference to the rule in
Rylands v. Fletcher. In Bugge ((272) (1919) 26 CLR at 114-115.),
Isaacs J recorded that, during the argument in that case, the Court
had ruled that an owner of land was not liable "for damage caused by
any fire there in fact kindled or kept by his servant whether
negligently or not". His Honour said ((273) ibid. at 115.):
"Whatever may have been anciently considered the true rule of the
common law, the rigorous proposition so contended for cannot now be
maintained."

9. Furthermore, in Whinfield v. Lands Purchase and Management Board of
Victoria and State Rivers and Water Supply Commission of Victoria
((274) [1914] HCA 49; (1914) 18 CLR 606.), the Court held that the occupier of land
was not liable for an escape of fire caused by the negligence of one of
its employees who, with its permission, was camping on the defendant's
land. Both the reasoning and the actual decision are inconsistent with
the existence of the "ignis suus" principle being part of the law of
Australia. Indeed, Isaacs J dealt with the case on the basis that, if
the defendant was liable, it was liable under the rule in Rylands v.
Fletcher.

10. Then, in McInnes v. Wardle ((275) [1931] HCA 40; (1931) 45 CLR 548.), where the
Court held that the employer of an independent contractor was
responsible for the spread of fire which the contractor had started,
none of the reasons for judgment relied on the common law principle of
"ignis suus". Nevertheless, counsel for General Jones relied on a
passage in the judgment of Evatt J in that case to support the
existence in Australia of the "ignis suus" principle. His Honour said
((276) ibid. at 552.):

"Black v. Christchurch Finance Co. ((277) (1894) AC 48.)
establishes that a person who authorizes the use of fire in order
to clear or burn off on land occupied by him is under a duty to
neighbouring landholders to see that reasonable care is
exercised to prevent the fire from spreading."

However, the reference to reasonable care in that passage makes it
plain that his Honour was not intending to apply the doctrine of
"ignis suus" formulated by the early common law.

11. Finally, in Wise Bros. Pty. Ltd. v. Commissioner for Railways
(N.S.W.) ((278) [1947] HCA 33; (1947) 75 CLR 59.), the Court held that Hazelwood was
authority for the proposition that the "ignis suus" principle was not
part of the law of Australia ((279) See ibid. at 67, 68, 70, 73-74.).

12. Having regard to these authorities, it is not possible to hold
that the "ignis suus" principle is part of the common law of
Australia. Accordingly, the Full Court of the Supreme Court of
Tasmania was correct in the present case in rejecting the argument
that the "ignis suus" principle is part of the common law of Australia
and entitled General Jones to succeed in the present action.

Rylands v. Fletcher

13. In Fletcher v. Rylands ((280) (1866) LR 1 Ex at 279-280.), Blackburn
J said:

"We think that the true rule of law is, that the person
who for his own purposes brings on his lands and collects
and keeps there anything likely to do mischief if it
escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which
is the natural consequence of its escape. He can excuse
himself by shewing that the escape was owing to the
plaintiff's default; or perhaps that the escape was the
consequence of vis major, or the act of God; but as nothing
of this sort exists here, it is unnecessary to inquire what
excuse would be sufficient. The general rule, as above
stated, seems on principle just."

14. When the case was taken on appeal to the House of Lords,
Lord Cairns LC and Lord Cranworth expressly agreed with that
statement ((281) Rylands v. Fletcher (1868) LR 3 HL at 340.).
However, in the course of his speech, Lord Cairns drew ((282) ibid. at
339.) a distinction between the "natural use" of the defendant's land
and its "non-natural use".

15. The rule in Rylands v. Fletcher, like other common law rules,
has undergone much exposition and development since it was first
formulated by Blackburn J in Fletcher v. Rylands ((283) (1866) LR 1 Ex
at 279-280.). The genius of the common law is that the first
statement of a common law rule or principle is not its final statement.

Rules and principles are modified and expanded by the pressure of

changing social conditions and the experience of their practical
application in the life of the community. In Australia, however, the
rule in Rylands v. Fletcher has undergone little, if any, development
in the last sixty years. The reason for this is that, in Hazelwood
((284) (1934) 52 CLR at 277.), this Court explained the rule in terms
which have been regarded as authoritative.

16. In Hazelwood ((285) (1934) 52 CLR at 277-278.), Gavan Duffy CJ,
Rich, Dixon and McTiernan JJ said:

"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. ... But
in the decision which finally confirmed the general
application of this exclusion of absolute responsibility,
namely, Rickards v. Lothian ((286) [1913] UKPC 1; (1913) AC 263 at 280.), 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'."

17. In my experience, this authoritative exposition of the rule has
proved a satisfactory, if not sure, guide to its proper application.
Of course, views will inevitably differ as to what results should flow
from the application of the rule. But in the application of legal
rules and principles there is nothing novel about that experience.

18. In England, the position is very different. From the beginning
of the post-Rylands v. Fletcher period, English courts have sought to
restrict the scope of that case ((287) See, for example, Green v. The
Chelsea Waterworks Company (1894) 70 LT 547 at 549 where Lindley LJ
said that it was "not to be extended beyond the legitimate principle on
which the House of Lords decided it. If it were extended as far as
strict logic might require, it would be a very oppressive decision".) .

When, in Read v. J Lyons and Co. Ltd. ((288) [1946] UKHL 2; (1947) AC 156.), the

House of Lords did not greet the rule with any enthusiasm, it became
obvious that English law would not develop a comprehensive and coherent
theory of strict liability for hazardous conduct. No doubt this
attitude to the rule in Rylands v. Fletcher was the consequence of the
belief that civil liability should depend on moral fault, an idea that
began to influence English legal thinking in the second half of the
nineteenth century and still finds support in common law jurisdictions.

As is generally the case when courts are not enthusiastic about a

legal rule, the decisions as well as dicta in English cases on the rule
in Rylands v. Fletcher are not easy to reconcile. Thus, to evaluate
the rule in terms of the English cases or to analyse English decisions
on the effect of particular words and phrases used by Blackburn J
would be to ignore the significant Australian contribution to the
understanding of the rule. Moreover, Rylands v. Fletcher contains a
common law principle, not a statutory enactment. In applying the
common law, it is not the function of "judges to frame definitions or
to lay down hard and fast rules. It is their function to enunciate
principles and much that they say is intended to be illustrative or
explanatory and not to be definitive" ((289) Broome v. Cassell and Co.
Ltd. [1972] UKHL 3 [1972] UKHL 3; ; (1972) AC 1027 at 1085 per Lord Reid.). In Benning v. Wong
((290) [1969] HCA 58; (1969) 122 CLR 249 at 299.), Windeyer J, speaking of the rule
in Rylands v. Fletcher, said:

"What the Court of Exchequer Chamber and the House of Lords
did was to state a doctrine or principle of the common law.
To regard the words used as if they were the provisions of a
statute defining in precise and permanent terms the limits
of legal rights and duties seems to me a mistake."

19. Counsel for General Jones suggested that the rule in Rylands v.
Fletcher had been incorporated into the law of negligence. Just when
or how this incorporation occurred was not explained. In view of the
decisions of this Court in Lothian v. Rickards ((291) [1911] HCA 16; (1911) 12 CLR
165.), Hazelwood, Torette House Pty. Ltd. v. Berkman ((292) [1940] HCA 1; (1940) 62
CLR 637.), Wise Bros., Eastern Asia Navigation Co. Ltd. v. Fremantle
Harbour Trust Commissioners ((293) [1951] HCA 7; (1950) 83 CLR 353.) and Benning,
the incorporation must have occurred only in recent years. Moreover, it
has escaped the attention of the authors of texts on the law of torts
who have devoted separate chapters to the rule in Rylands v. Fletcher.

20. Irrespective of whether the rule in Rylands v. Fletcher is or
is not a satisfactory ground of tortious liability, for more than one
hundred years it has been treated in this country as a settled rule of
liability in no way dependent upon proof of negligence. In
Benning ((294) (1969) 122 CLR at 278.), Menzies J said:

"The whole point of Rylands v. Fletcher liability is that
the exercise of care is irrelevant. The liability for
injury by reason of the escape of the dangerous substance
brought on to premises is absolute save for well defined
defences such as an act of God. To admit a defence of no
negligence as an answer to a Rylands v. Fletcher claim would
virtually defeat the very purpose of the rule itself and it
is clear that the original foundation of the rule did not
admit care as a defence in any circumstances at all. The
duty established was to insure against damage from a
dangerous thing brought upon premises if it escape, even
without negligence."

21. With great respect to those who are of the contrary opinion, I do
not see how, consistently with the settled doctrine of this Court, the
liability of an occupier of land under the rule in Rylands v. Fletcher
can be understood as assimilated to, or could be incorporated into,
an occupier's liability in negligence. It is true that, in some
circumstances in an action for negligence, an occupier of land is
liable for the acts of independent contractors. In that respect
there is a superficial similarity between liability in negligence and
liability under the Rylands v. Fletcher rule. However, the similarity
is superficial because in negligence the occupier is only liable for
the negligent acts of an independent contractor. Under Rylands v.
Fletcher, on the other hand, the occupier of land is liable for the
acts of an independent contractor which cause the escape of the
harmful thing whether or not the contractor's acts were negligent.

22. Once one moves out of the area of independent contractors, any
similarity between an occupier's liability for negligence and the rule
in Rylands v. Fletcher disappears. Outside the area of independent
contractors, the occupier of land is liable in negligence only for his
or her own negligence or the negligence of his or her employee. Under
Rylands v. Fletcher, the occupier is liable for an escape caused by
any person other than a stranger, irrespective of negligence.

23. The most important difference between the action for negligence
and the action based on Rylands v. Fletcher, however, is that the
occupier of land is not liable under Rylands v. Fletcher unless the
escape of the dangerous substance was the result of what Lord Cairns
in that case described as a "non-natural use" of land. As the
judgment of this Court in Hazelwood ((295) (1934) 52 CLR at 278.)
explains, a non-natural use of the land occurs only when some special
use is made of the land which brings with it increased danger to those
outside the land.

24. Furthermore, it is a question of law for the trial judge to
determine whether the use of the land amounts to a special use
bringing with it an increased danger to others. As the Court pointed
out in Hazelwood ((296) ibid.):

"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."

25. In Handcraft Supply Co. Pty. Ltd. v. Commissioner for
Railways ((297) (1959) 77 WN(NSW) 84 at 87.), Jacobs AJ said that
the concept of natural use:

"is, apparently, a changing one and, perhaps, this is one of
the rare cases where the law openly recognizes the effect of
social and economic circumstances upon the determination of
questions of law in the judicial process. It appears to me
that there is no more than that which is involved. The
judge is bound to apply to the question whether the user is
a natural or non-natural one the experience, conceptions and
standards of the community in which he is. The judge must
take into account all the various matters, such as climate,
character of the country and natural conditions. He must
bear in mind the competing social needs which are involved
and he must, as best he can, determine the matter as one of
law."

26. In those States where actions based on Rylands v. Fletcher and
negligence are tried by juries, the issue of non-natural use is
determined by the judge, the issue of negligence by the jury.

27. In determining the issue of non-natural use, factors that would
be decisive on an issue of negligence will frequently be of only
marginal relevance on the issue of non-natural use. Often, they
will be irrelevant to the latter issue. In determining whether a use
of land is natural, the court does not look at all the particular
circumstances of the individual occupier but whether, in the time,
place and circumstances of the particular community, the character of
the use of the land by that occupier constitutes a non-natural use.
Thus, in the classic Rylands v. Fletcher situation, land is used
for a non-natural purpose even though the particular amount of water
stored is small and the walls of the reservoir are thick and high.
Similarly, burning a domestic fire to warm a room does not constitute
a non-natural use of the premises because the fire has no guard and is
left unattended ((298) Sochacki v. Sas (1947) 1 All ER 344.).
Non-natural use of land is a different concept from the negligent use
of the land ((299) Whinfield (1914) 18 CLR at 616; Hazelwood (1934) 52
CLR at 275- 277; Torette House (1940) 62 CLR at 654-655; Wise Bros
(1947) 75 CLR at 68; Smith v. Badenoch (1970) SASR 9 at 13-14; Rickards
v. Lothian [1913] UKPCHCA 1; (1913) 16 CLR 387 at 401; (1913) AC at 280; Read (1947)
AC at 176; British Celanese v. A.H. Hunt Ltd. (1969) 1 WLR 959
at 963.).

28. Counsel for General Jones insisted that the manner of performing
an operation was relevant to the issue of non-natural use and that
cases which had ignored the manner of use were wrongly decided. But
the submission must be rejected. No doubt there are cases where
courts have looked at the manner of an operation on an occupier's
land. But, with respect, this approach is wrong. Circumstances are
relevant to the issue of non-natural use. But manner of performance
is not ((300) Hazelwood [1934] HCA 62; (1934) 52 CLR 268; Bayliss v. Lea (1959) 61
SR(NSW) 247.). In determining whether a use is a natural use, regard
must be had to what the occupier did. It is then necessary to
determine whether that class of activity constitutes a natural use
having regard to the time, place and circumstances including the
conduct of other members of the relevant community. Inevitably, the
court must consider the risk involved, including the risk of escape
from the class of activity, and the potential magnitude of the damage.
But the exercise does not involve any close examination of the
specifics. In a fire case, the Court does not examine how many
hydrants or hoses were available. Nothing in Hazelwood supports any
contrary view. The Court's reference ((301) ibid. at 278.) to "the
benefit obtained by the farmer who succeeds in using it with safety to
himself" is not a reference to the particular defendant but to a
section of the community. Indeed, the Court was at pains to point out
((302) ibid.) that "(t)he question is not one to be decided by a jury
on each occasion as a question of fact" (my emphasis).

29. Determining what is or is not a natural use of land is often a
difficult question. Because that is so, it is not surprising that
some decisions seem inconsistent with others. But that does not mean
that the principles expounded in Hazelwood result in unprincipled,
ad hoc decision-making. The criterion of reasonable care in
negligence is equally capable of producing decisions which appear to
be inconsistent with each other. But no one suggests that they are
unprincipled.

30. It is, of course, true that, like negligence liability, liability
under Rylands v. Fletcher is not absolute. The prima facie liability
of the occupier for an escape may be displaced by various defences
such as act of God, act of a stranger and consent or default of
the plaintiff. But, with the exception of the defence of consent,
those defences cannot be equated with the defences of volenti or
contributory negligence to an action for negligence. The Rylands v.
Fletcher defences go to the issue of causation. The occupier is not
liable under those defences because the act of God or the act of a
stranger is a novus actus interveniens ((303) Benning (1969) 122 CLR at
298.). Furthermore, no defence of contributory negligence is
available in an action based on Rylands v. Fletcher. Yet, if the rule
of that case is incorporated into the law of negligence, the damages of
a plaintiff will be liable to be reduced by the extent of that person's
fault in contributing to the damage.

31. A further difference between an action for negligence and an
action based on Rylands v. Fletcher is that in negligence the
defendant is liable only for damage which is reasonably foreseeable.
It has not yet been held in this country that the defendant in a
Rylands v. Fletcher action is liable only for damage which is
reasonably foreseeable ((304) See Overseas Tankship (U.K.) Ltd. v.
Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [1961] UKPC 1; (1961) AC 388 at
426-427.). And since liability in that action is a strict liability,
it is inconsistent with its rationale to limit the occupier's liability
to damage which was reasonably foreseeable. Until last year, the
weight of authority supported this conclusion ((305) West v. Bristol
Tramways Company (1908) 2 KB 14; and see Rainham Chemical Works Ltd. v.
Belvedere Fish Guano Co. (1921) 2 AC 465.). However, the House of
Lords has now held that liability under Rylands v. Fletcher is limited
to damage which is reasonably foreseeable. Their Lordships did so on
the ground that the remoteness rule applied to nuisance actions and
that, because a Rylands v. Fletcher action was an extension of the
action for nuisance, it was logical to apply the same remoteness rule
to it ((306) Cambridge Water Co. v. Eastern Counties Leather Co. (1994)
2 WLR 53 at 79.).
Logical or not, it is inconsistent with the rationale of the rule in
Rylands v. Fletcher.

32. Furthermore, I cannot accept the proposition that, if liability
exists under the rule in Rylands v. Fletcher, it is highly likely that
liability will arise under the ordinary principles of negligence.
Hazelwood itself is a convincing answer to that proposition. There
the jury expressly found that there was no negligence on the part of
the defendant or his employees. Yet the Full Court of the Supreme
Court of New South Wales was able to hold the defendant liable under
Rylands v. Fletcher on the ground that there was a non-natural use of
land. This Court upheld the finding of the Full Court. Similarly, in
West v. Bristol Tramways Company ((307) (1908) 2 KB 14.), the
defendant was held liable under the rule in Rylands v. Fletcher
although there was a finding of no negligence. It is beside the point
that these days a finding of negligence might be made in circumstances
similar to those in issue in those cases. What is decisive for present
purposes is that liability existed under Rylands v. Fletcher even
though the occupier had not been negligent. As long as it remains the
law that a person is not liable in negligence for a reasonably
foreseeable risk of injury unless a reasonably practicable alternative
means of avoiding the risk was also available to the defendant,
liability will continue to exist under Rylands v. Fletcher in cases
where it does not exist in negligence.

33. If plaintiffs were deprived of the benefit of the rule in
Rylands v. Fletcher, they would often have difficulty in obtaining
compensation for their damage.It often happens that the cause of
an escape of a harmful product either is unknown or cannot be
established on the probabilities. In such cases, proof of negligence
is impossible unless the plaintiff can invoke the doctrine of res ipsa
loquitur. Even when the cause of an escape can be identified, it
does not follow that negligence will be established. If the rule in
Rylands v. Fletcher is subsumed under negligence liability, it seems
inevitable that many defendants, liable under that rule, will escape
liability if plaintiffs are confined to actions for negligence and
nuisance. In many, perhaps the majority of cases of escape arising
from the non-natural use of land, proof of negligence involves a
contest between experts as to whether the risk of escape in the
process or system was reasonably foreseeable and whether this or
that precaution should reasonably have been taken. Such cases are
expensive to run and uncertain of result. True it is that most
Rylands v. Fletcher claims are accompanied by a claim in negligence.
However, particularly in trials by judges without juries, it is often
convenient and possible to try the Rylands v. Fletcher claim first.

34. To incorporate the rule in Rylands v. Fletcher into the law of
negligence by judicial decision would be a far reaching step, going
beyond previous developments of the common law by this Court. Here
the Court is dealing with a rule which has been explained and applied
by this Court on numerous occasions. It is a fixed rule of law, as
imperative as a statutory command. It has been applied in this
country for more than one hundred years. Indeed, the formulation of
the rule in Rylands v. Fletcher was not intended to create a new tort.
It "was expressed as only a generalized statement of ancient common
law doctrine as exemplified by a variety of earlier cases" ((308)
Benning (1969) 122 CLR at 294.).

35. One does not have to agree with the result in State Government
Insurance Commission v. Trigwell ((309) [1979] HCA 40; (1979) 142 CLR 617.) to agree,
as I do, with what Mason J said in that case about departing from the
settled rules of the common law. What his Honour said must always be
borne in mind before this Court abolishes, extends or modifies a
settled rule of the common law. His Honour said ((310) ibid. at
633-634.):

"The court is neither a legislature nor a law reform agency.
Its responsibility is to decide cases by applying the law
to the facts as found. The court's facilities, techniques
and procedures are adapted to that responsibility; they
are not adapted to legislative functions or to law reform
activities. The court does not, and cannot, carry out
investigations or enquiries with a view to ascertaining
whether particular common law rules are working well,
whether they are adjusted to the needs of the community and
whether they command popular assent. Nor can the court call
for, and examine, submissions from groups and individuals
who may be vitally interested in the making of changes to
the law. In short, the court cannot, and does not, engage
in the wide-ranging inquiries and assessments which are made
by governments and law reform agencies as a desirable, if
not essential, preliminary to the enactment of legislation
by an elected legislature.
These considerations must deter a court from departing
too readily from a settled rule of the common law and from
replacing it with a new rule."

36. No doubt courts in general, and this Court in particular, are
more ready to alter the rules of the common law and equity than they
were in 1979 when Trigwell was decided. But the law-making function
of a court is different from that of a legislature. It is merely an
incident of the duty to adjudicate disputes between litigants. It
arises from the necessity to do justice between the parties and those
who stand in similar situations. A judge-made rule is legitimate only
when it can be effectively integrated into the mass of principles,
rules and standards which constitute the common law and equity. A
rule which will not "fit" into the general body of the established law
cannot be the subject of judge-made law.

37. Incorporating the rule in Rylands v. Fletcher into the law of
negligence might not offend the "fit" principle. But it would require
squeezing an established principle of strict liability out of the
common law so that the law of negligence can control the field. In
an age where the escape of fire, oil, gases, chemicals and even
radio-active materials has often caused widespread damage, it is not
readily apparent why the common law should now abandon the prima facie
rule of strict liability established in Rylands v. Fletcher for the
indeterminacy of the action for negligence. Proximity, remoteness,
reasonable care and breach of duty, the bench marks of negligence law,
are not formulas for exactness. The wavering history of the law of
negligence in relation to the recovery of damages for purely economic
loss is eloquent evidence of the inherent indeterminacy of negligence
law. Moreover, the common law holds no prejudice against strict
liability. As Windeyer J pointed out in Benning ((311) (1969) 122 CLR
at 303.) "strict liability was known to the law long before negligence
emerged in the nineteenth century as itself a cause of action".

38. By abolishing the rule in Rylands v. Fletcher, the Court would
abolish the rights and potential rights of persons whose property and
person have been or will be injured by the escape of dangerous
substances. No one can know how many pending cases or existing
causes of action will be defeated by the abolition of the rule. If
experience is any guide, the recent bushfires in New South Wales will
generate at least some Rylands v. Fletcher claims.

39. Furthermore, in recent years, Law Reform Commissions and
equivalent bodies have advocated the enactment of strict liability
rules in various areas of social activity which involve the use of
substances likely to cause great harm if they escape ((312) See Great
Britain, Royal Commission on Civil Liability and Compensation for
Personal Injury, 1978, Cmnd 7054-1; South Australia, Eighty-Seventh
Report of the Law Reform Committee of South Australia to the
Attorney-General Relating to Claims for Injuries from Toxic Substances
and Radiation Effects, 1985.). Clearly, the investigations of those
bodies have not revealed the superiority of the negligence action to an
action based on a prima facie rule of strict liability. With great
respect to those who hold the contrary view, much more evidence,
analysis and argument than was put before this Court in this case is
needed before the Court can properly determine whether the rule in
Rylands v. Fletcher should be banished from the books. In the
meantime, we should continue to apply the established rule.

The liability of BPA under Rylands v. Fletcher

40. In the last quarter of the twentieth century, the use of welding
equipment on an industrial site for the purpose of construction work
cannot be regarded as a non-natural use of land. The learned judges
of the Full Court thought a non-natural use of land had occurred
because the welding was done in the vicinity of cartons of Isolite.
But this is to determine the issue of non-natural use by reference to
the manner of performing the work. In that respect, the Full Court
was in error. In so far as the action against BPA was based on the
rule in Rylands v. Fletcher, it must fail.

The liability of BPA in negligence

41. The action based on negligence must also fail because the
defendant is not liable for the negligence of its independent
contractor. The reasoning and, in my view, the decision of this Court
in Stoneman v. Lyons ((313) [1975] HCA 59; (1975) 133 CLR 550) is
directly opposed to the proposition that BPA is liable simply because
it engaged and authorised Wildridge to carry out work which involved
the use of Isolite stored in cardboard cartons and to do extensive
welding work. Obviously, the welding operation carried out by
Wildridge involved a real and serious risk of injury unless precautions
were taken to eliminate the risk of injury. But it has not yet been
held in this Court that that is sufficient to make a person in BPA's
position liable for the negligence of an independent contractor.

42. In Stoneman, the owner of land employed a contractor to construct
a wall along the boundary of the land immediately adjacent to a
building on the adjoining land. The contractor caused the collapse
of the wall of the building when he negligently excavated a trench
alongside the wall. This Court held that the owner was not liable for
the collapse of the wall. Mason J, with whose judgment Barwick C.J
and Gibbs J agreed, said ((314) ibid. at 576.):

"The principle that in the case of dangerous operations
there is a special responsibility to take care does not
exclude the liability of a person who engages an independent
contractor to undertake an operation which is inherently
dangerous and which injures a third party. But to make the
principal liable it must appear that he himself was guilty
of some negligent act or omission or that he authorized some
negligent act or omission by the contractor in executing the
operations which the latter was employed to carry out. Thus
it may appear that the principal is liable because he has
failed to take care to engage a competent contractor or
because, having knowledge that the contractor proposed to
execute the work in an unsafe manner, he did nothing to
eliminate the danger."

Stephen J said ((315) ibid. at 564.):

"An employer will, whether or not the activity is
regarded as extra-hazardous, be liable in negligence for
the consequences to third parties both of acts which he
specifically authorizes or directs and of methods not so
authorized but which are necessarily involved in performing
those acts. For the consequences of other negligent conduct
of the contractor the employer will not be liable; he did
not, in the language of Jordan CJ, have control over that
conduct."

43. In the present case, as in Stoneman, BPA did not engage an
incompetent contractor. Nor did it have knowledge "that the
contractor proposed to execute the work in an unsafe manner". It
cannot be held liable for the negligence of Wildridge.

44. The appeal must be allowed.