(respondents).

destruction of this property. The trial took place in the Supreme Court, before Denniston, J., and a special jury, on the

The respondents employed a contractor to clear certain bush land contiguous to the appellant's land by falling and burning. The contractor negligently allowed the burning to extend into the appellant's land, whereby he suffered great damage:-Held, that the respondents were liable for such damage.

This was an appeal from a judgment of the Court of Appeal of New Zealand.

The action was for damages for the destruction of the appellant's crops by a fire which spread from the respondents' land to the appellant's land.

The facts were as follows: The appellant and the respondents were owners of contiguous lands—the appellant's property being under crop, while that of the respondents was covered with native forest. With a view to clearing this, the respondents entered into a contract with one Wright, who contracted as follows:

"I hereby contract with you for the falling and burning of bush on section No. 31,438 in the following manner:

"I will fall bush, scrub, saplings, and briars on the land, up to the size of eighteen inches in diameter, about one foot from the ground, and I will start falling within three days from this date, and complete the falling by the 30th of November, 1890, and burn in a favourable time about February next. take all the responsibility connected with burning off the bush, and all damages arising therefrom are to be made good and borne by me alone."

I to

Wright employed a bushman of the name of Nyman to do the work, and to clear the bush.

The felling of the bush was duly completed about the end of November. On the 23rd of December Nyman set fire to the fallen bush. A strong north-westerly wind was blowing at the time, and the fire spread to the adjoining property of the appellant and destroyed over two hundred acres of grass.

The appellant claimed damages for the

put to the jury was whether the fire had been lighted by one Nyman, as alleged by the appellant. The jury found that it had been so lighted. The learned Judge gave judgment for the appellant for 1,6007., the agreed amount of the damages.

On appeal to the Court of Appeal, the judgment for 1,600l. recovered by the now appellant was set aside, and judgment was ordered to be entered for the respondents. From this judgment the present appeal was brought.

Ollivier (New Zealand Bar), for the appellant. The lighting the fire was part of the work to be done by the respondents' contractors. The contract did not fix any definite time for the burning, but provided that it should be "in a favourable time," and suggested February. The object of the respondents in suggesting a time for such burning was merely to secure a good burn, the clearing of their land by the total destruction of the bush. It was left to the judgment of the contractors to burn as soon as the fallen bush was dry enough. The contractors were to remain on the land until the contract was performed. Even if the contract had fixed a definite time for the burning, the defendants would still have been liable for damage caused by the contractor burning such bush at a time other than that specified. The defendants neglected to make any provision in the contract, and neglected to take any precaution whatever to prevent damage being caused to neighbouring properties. The contract was a single contract for clearing the land and burning at a future time.

[He referred to Limpus v. The London Omnibus Company (1), Hall v. The Sittingbourne and Sheerness Railway Company (2), and Hughes v. Percival (3).]

Jelf, Q.C., and Danckwerts, for the respondents.-The respondents were not

(1) 32 Law J. Rep. Exch. 34.

(2) 30 Law J. Rep. Exch. 81.

(3) 52 Law J. Rep. Q.B. 719; Law Rep. 8 App. Cas. 443

Black v. Christchurch Finance Co. only one to them; and that as there were questions of law involved, I would leave them to answer a specific issue, and reserve the law points for after-discussion. No objection was made to my charge. The jury found, as they could not avoid finding, that Nyman had lit the fire. No other issue was asked to be put to the jury by the defendants' counsel. There was never any doubt that, in lighting the fire, Nyman did so in his capacity of contractor or sub-contractor. It is not suggested that he did it for amusement or maliciously. Indeed, in the present argument, Mr. Joynt himself suggested that no one would dispute that his real object was to get the work done as early as possible, so as to get the contract money. The legal consequence of his having so lit the fire is another matter, but it is clear that, after the finding of the jury, no disputes as to the facts can exist, and the only question left is one purely of law."

In the view which the learned Judge took of the law, the question really turned on the meaning and effect of the contract by which the defendants devolved the operations of clearing and burning the bush on Wright the contractor, and which was in these terms:

66

'Contract dated the 15th of July, 1890. "Joseph Wright with the Christchurch

Finance Company (Limited). "I hereby contract with you for the falling and burning of bush on section No. 31,438, in the following manner:

"I will fall bush, scrub, saplings, and briars on the land, up to the size of eighteen inches in diameter, about one foot from the ground, with the exception kounini, broadleaf, and eno, which I will strip of all limbs, and agree to burn everything up to the size of six inches in diameter, and I will start falling within three days from this date, and complete the falling by the 30th of November, 1890, and burn in a favourable time about February next. I to take all responsibility connected with burning off the bush, and all damages arising therefrom are to be made good and borne by me alone. The boundary being about two chains south of creek, and joining Mr. Black's fences on other boundaries, and that you should pay me

30s. per acre for falling and burning in the aforesaid manner, and the payments to be as follows: 2s. 3d. payable on bush being fell, and the balance of contract paid on Mr. Belmer's certificate of completion.

"I to have the firewood at a royalty of 38. per cord, and right to make road through the reserve to enable me to haul my timber to the main road."

The defendants appealed against Mr. Justice Denniston's judgment, and by their notice of appeal they intimated that they would move the Court of Appeal "to set aside the judgment given for the respondent by the Supreme Court at Christchurch, on the 15th of July, 1891, and to enter up judgment for the defendants, with costs, on the grounds shewn by the statement of claim and defence, and by the admission evidence and finding at the hearing in the said Supreme Court."

This notice of appeal, it will be observed, did not again ask for a new trial, but invited the Court to dispose of the case on the record, and the admission evidence and finding at the hearing of the case by Mr. Justice Denniston, as that learned Judge had himself done.

Although the verdict given at the trial was an answer to one question only, and that a question the answer to which taken alone could not afford a solution of the legal point of the defendants' liability, the Court of Appeal has entertained and disposed of the case on the view that the judgment of Mr. Justice Denniston fully explains the course which the trial took, and that judgment should accordingly be given on the evidence and the admissions, as the defendants asked by their notice of motion. Taking this view, the Court of Appeal have concurred with Mr. Justice Denniston in holding that the decision of the case depends on the terms of the contract entered into between the company and Wright, as to the legal effect of which, however, they have arrived at a different result. The defendants' counsel proposed in the event of their Lordships differing from the judgment of the Appellate Court that the case should still be remitted back to have a new trial on certain points on which they maintained the proof was not clear, but their Lord

which could reasonably be expected to avert the danger, of which the present appears to be a pretty clear instance, for it is scarcely conceivable that when once the fire was lit, not at a suitable or favourable time, but with the wind blowing as it was, any means which could be suggested would have saved the consequences which occurred. In any view, no preventive means of any kind were adopted, and there can be no doubt as to the liability of the defendants if they are responsible for Nyman's act.

Black v. Christchurch Finance Co. ships are clearly of opinion, having regard to the course taken before the Courts below, that the appeal should be now disposed of as depending on the contract already referred to, in the light of the facts as these have been found or accepted as proved in the judgments of the Courts below. In this view, it appears to their Lordships that the act of Nyman in setting fire to the bush on the defendants' land must be regarded as the act of the contractor. Mr. Justice Denniston expressly says with reference to what occurred at the trial: "No other issue was asked to be put to the jury by the defendants' counsel. There was never any doubt that in lighting the fire Nyman did so in his capacity of contractor or sub-contractor;" and the learned Judges in the Court of Appeal have proceeded on substantially the same view of the result of the evidence and of what occurred at the trial on this point.

The case does not raise any general question of law, but seems to involve only the question whether the defendant company under the special terms of their contract are responsible for the act of Nyman in setting fire to the bush at a time when admittedly, with a north-west wind blowing, his act was attended with great risk of damage to the plaintiff's property. It has not been disputed that if Nyman in what he did was acting under the defendants' contract, by which the burning of the bush had been let or contracted for, the defendants must be responsible for the consequences. 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 ledas). And if he authorises 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 (3) and authorities there cited. Cases may, indeed, occur in which no precautions could be adopted

Conflicting views have been taken by Mr. Justice Denniston on the one hand, and the Court of Appeal on the other, as to the effect of the contract with Wright, which was entered into on the 15th of July, 1890. The fire took place on the 23rd of December following. The Court of Appeal has held that a fire on that date, or on any date earlier than would be fairly covered by the words "about February next," could not be regarded as under the contract, and accordingly reversed the judgment of Mr. Justice Denniston in the plaintiff's favour.

The contract was made expressly for the "falling and burning" of the bush on the defendants' land. It proceeds in its second sentence to specify what the contractor is to fall, and what he is to burn. "I will fall bush, scrub, saplings, and briars on the land," &c., "and agree to burn everything up to the size of six inches in diameter." It then proceeds: "and I will start falling within three days from this date and complete the falling by the 30th of November, 1890, and burn in a favourable time about February next." Thus in three instances in the earlier part of the document the falling and burning of the bush are treated together as parts of one general operation for the clearance of the ground. There follows a clause by which the contractor agrees to take all responsibility connected with burning off the bush and all damages arising from this. The price is then fixed at a lump sum of 30s. per acre "for falling and burning," two-thirds to be paid on bush being "fell," and the balance paid on certificate of completion. The contract contains a further term that the contractor is to have the firewood at a royalty

Black v. Christchurch Finance Co. of 38. per cord, and right to make a road through the reserve to enable him to haul his timber to the main road.

The contract, taken as a whole, is one for the clearance of the ground of all growing bush and timber, to be effected by the consecutive operations of felling and burning. It is stipulated that the first of these operations shall be begun at once and concluded by the end of November following. Then follow the words on which the judgment of the Court of Appeal proceeds" and burn in a favourable time, about February next." It is said that the specification of time to burn. "about February next" has the practical effect of separating the operations of felling and burning so completely as really to create two contracts, though for a lump payment, and that the contractor, if he went on the land sooner than "about February" to light the bush, was to be regarded in the present question in the same way as an intruder or a stranger for whose act the defendant company would have no responsibility. Their Lordships are unable to agree with this view of the contractor's position. The contract bound the contractor "to burn in a favourable time." It cannot be suggested that if he had violated this condition only of his contract, the defendants would have escaped responsibility. Having authorised and entrusted the operation of burning to another they must answer for his proceedings, however much he may have violated their instructions or the detailed conditions of his contract with them. Their Lordships agree in the observation of Mr. Justice Denniston when he says, with reference to the act of Nyman, "I cannot distinguish between the legal consequences of lighting a fire at an improper time and of lighting it in an improper manner." In the present case the clearing of the land was authorised by a contract for felling and burning. It no doubt contained a stipulation that an interval should elapse between the two operations, presumably in order that the bush cut should be thoroughly dried so that the burning should be as complete as possible. It is not easy to say why "about February" should have been specified as

the time of burning, for there is some evidence that the cocksfoot harvest, which would be endangered, is usually going on throughout that month. It may have been in order to secure a sufficient interval after the felling, which was to be completed not later than by the end of November, or because it was desired to have the ground fully cleared about February. But assuming that there was a violation of the terms of the contract on the contractor's part in burning so early as the end of December, this cannot, in their Lordships' opinion, affect the defendants' liability to third parties injured by the act of their contractor. It is clear that the contractor had the right under his contract to be on the ground from time to time as he thought fit until the whole operations were completed for felling, for clearing away the timber he was entitled to remove, for making a road to enable him to do so, and for the burning of the bush. Their Lordships cannot adopt the view that the contracts for felling and for burning the bush are to be regarded as in any proper sense separate or independent, and that the separate contract to burn the bush did not come into operation until about February. There was but one contract, to fell and to burn-that is, to clear the land; and though the contractor disregarded the stipulation which the defendants made with him as to the time of burning, this cannot relieve them from responsibility. The defendants. might have stipulated that an interval of two months should elapse after the time of felling and before the burning should take place. If the contractor, having leave under his contract to be on the land, had allowed a shorter interval only, it could not be said he was a trespasser when he lighted the fire, so that the defendants would not be liable for his act. So also if the contractor disregarded or violated stipulations as to the manner of lighting, or the place at which the fire should be lit. Their Lordships are unable to draw any distinction in legal principle between such cases and the present, in which the condition related to the time at which the fire was to be lighted.

Their Lordships will humbly advise her