FOXTON FLAX CASE.

Manawatu Herald, Volume XXXVIII, Issue 1638, 16 November 1916, Page 3

FOXTON FLAX CASE.

JUDGMENT fOK PLAINTIFF.

Mr .1. IV. Foynton, S.M., gave judgment at Palmerston North on Monday in the case Stevens, Easton and Austin v. 4ohn Chryslail and Carl Lundquist, a claim for damages done hy it (ire lit by Lundquist which spread from Chr.vst all’s hind In the properly of phi infills. The judgment was as follows ;

This is a claim for damage to flax by a fire .spreading from defendanl’s bind. Defendant employed one Lundquist to cut a drain. Lnndqmsi, in ~rder to clear the rubbish off the line of the drain, bund: it, and the lire gat into plaintiffs’ Jinx. II is eonletided on behalf of defendant that he is not liable as Lundquist was an independenl contractor and his emit raid was (o dig it drain and not rlear rnhlnMt by means of a lire. If be did use tire he was not authorised to do so, and plaintiffs must look to him and not to defendant for relief. The law on Ihe liability for lire spreading is fairly clear. In Tltrelkeld v. White, 8 N.Z.L.H. (C.A.) 513, it was decided that a landowner eannoi escape responsibility for the use of lire in Ibe cultivation of h;s land by employing a coni factor who makes use of lire in doing the work, without Vicing authorised to employ (ire in carrying if out. In (ha! ease a coat factor had verbally agreed to clear 140 acres of land. There were rushes raid other growths on if. .Nothing was said its to how the rubbish and growths were to he disposed of. The usual course was to barn thorn. The coniraetor set lire to the growth and the lire spread to plaintiff’s land and did damage. It Mas held that Ihe owner of the land from winch (he (ire spread was liable. In Black v. ('lmAehureh Pina nee Co., Ltd., it was held by Ihe Privv Council (180-1) A. C. 48, lhal a company, owners of laud, was liable for the acts of its contractor in negligently .and improperly lightbig a lire on iis land and permitting it to spread to Ihe plaintiff's land, even though slid) eotil raetor ill so doing disregarded special stipulations contained in such contract relative io the time al which such lire should he lit. To e-eape iiabaL ily it was decided that the. act of a contractor must lie that of a trespasser and not one within the scope of his contract. Saimond, Law of Torts (I bird ed., p. 223), referring to (his case, so,vs : ‘“lt is clear from this ease that liabiliay of an occupier for negligent damage by lire is not limited to his own negligence, and In that nf his servants acting it! the course of their employment. How far, I him, does it extend/"

Thcve seems no reason tor supposing that il is any more restricted than Ills liability for the escape of ;mv other dangerous substance; and if this is so, il probably extends to the negligent ads nf alt persons lawfully on the premises with the occupier's pd’missi.m w bel her they an* servants, contractor, members of his family or licensees.' The ground where tin* drain was dug is of a very heavy nature, densely eovered with tali, coarse grass, and the easiest way to deal' it is to burn it off. Defendant says in* did not expect that il should be burnt to clear the surface and also that he warned the coni factor to be very careful in using lire on account of recent damage by tires in 1 li»* district. He- swears that this conversation was meant (o apply "only to lighting a (ire to boil the billy, lie did. however, not forbid the use of tire, and even if be did so, 1 think the negligent use of it by the contractor would make him liable, I must find, therefore, that he is responsible in law for the damage resulting from contractor's negligence in this case. As is usual in these suits, the estimates of (lie damage done- by the lire vary very much. Some sav fifteen to twenty tons of ilnx were burnt. The same dis-

erepaucy exists in respect of tin* injury to t lk* roots of the llax hushes. Sonic witnesses say only one in six will grow again, and oliters that nearly all will. 1 have examined a portion of the barm area, and b appears io me that fully 60 per cent, of the burnt bushes have started re-growtb. Since the ease was heard the ground lias been for weeks submerged by floods, and (he water lias caused a vigorous young growth in very many roots (bat. would appear to be dead when examined by the various witnesses shortly after the lire. The grass on the ground is a tall fescue of exceptionally luxuriant growth, and when dry a tiro would run through it and would follow the grass in preference to the flax, if the llax were not as dry as the grass. Prom what I saw of the burnt patches I got the impression that that is what took place, ’flu* heavy (lax did not seem to he burnt to the same extent as the places where the (lax was light and the grass dense. Tho grass having a much smaller leaf would, at a certain stage of drought, be much drier and more inilaminable than the (lax.

After carefully considering the evidence and nn examination oi. what was slated by the principal witnesses for the plaintifls to he a, .fair average portion of the burnt area, 1 assess the damages as follows: Twenty-eight tons of flax destroyed at l !l ' r (on > tlax rools and seeds destroyed and injured, £l3; labour for exlmgu,siting fires. £11; total, £35; loss paid bv defendant, £11; balance, £54. Judgment would therefore be for £54 and costs, witness £2 Bs, and solicitor’s fee £3 14.5. Security for appeal £ls 15s, plus amount of judgment and costs.