Dawson v Onslow (C.A. 23/1931.) [1931] EACA 7 (1 January 1931)

### COURT OF APPEAL FOR EASTERN AFRICA.

### Before SIR JACOB BARTH, C. J. (Kenya), SIR CHARLES GRIFFIN, C. J. (Uganda), and THOMAS, J. (Kenya).

# J. V. DAWSON (Appellant) (Original Plaintiff)

# D. A. G. ONSLOW (Respondent) (Original Defendant). C. A. $23/1931$ .

#### Damage caused by fire—duty of person to prevent fire spreading.

**Held** (21-12-31):—Following the judgment in Cullinan $v$ . Vair,<br>9 E. A. L. R. p. 46, that the spreading of the fire was due to the<br>respondent's negligence and that the damage caused to the<br>appellant's maize crib and propert Russell for Appelient.

#### Allan for Respondent.

Russell, referring to issues framed on original trial, submitted with regard to the first issue that there was no denial of liability. Respondent had had legal advice and admitted in correspondence that he first saw the fire near certain gum trees on his own land. Respondent was under a legal obligation to stay the fire provided he used all reasonable care in so doing. He relied on the rule in Fletcher v. Rylands and Another, Smith's Leading Cases, Vol. 1, at pp. 865, 869 and 913.

Allan, in reply, submitted that the law applicable in this Colony provides that fire may be applied to burn stubble, etc. Referred to Rickards v. Lothian, 1913 Appeal Cases. 280. There was no evidence that the fire on appellant's land was caused by fire in the maize stalks burnt by respondent. He submitted that the fire on respondent's land was perfectly normal and that there was possibility of fire being carried on to adjoining land by whirlwind. Argued that such an event would be an act of God and would take the case outside the scope of the rule in **Fletcher v.** Rylands (supra). There should have been an allegation of negligence in the plaint. 36 Eng. & Empire Digest, p. 55; 1921, 2 K. B., p. 289. Jefferson v. Derbyshire Farmers, Ltd.

Russell, in reply. Rickards v. Lothian (supra) does not relieve liability for allowing fire to spread.

The judgment of the Court was delivered by Thomas, J. in the following terms:-

JUDGMENT.—The appellant, $\mathbf{J}_{\cdot}$ $\rm V_{\rm \star}$ Dawson. sued the respondent, D. A. G. Onslow, for the sum of Sh. 2,189/40, compensation in respect of damage caused to his maize crib and other property, by a fire started by the defendant (respondent) on land that he was managing and which fire spread to the plaintiff's (appellant's) property.

The defence apart from admissions alleged that the damage to the plaintiff's crib was due to a fire started by the plaintiff, and denied that any damage had been sustained.

On that issue the learned trial Judge found in favour of the plaintiff, from that decision no appeal has been made. The evidence fully justified that finding.

The evidence of the plaintiff was that the two fires were so close that it was impossible to say where one began and the other finished. They raced for the crib and set it on fire.

I have referred to the case of the Port Victoria reported in 1902 Probate Division, p. 25. The President (Sir F. H. Jeune) in the course of his judgment said: 'Under these circumstances was the expenditure which the Norman has been exposed to so far the consequence of the Port Victoria's negligence as to make her liable? . . . There was a vessel coming down towards him, with the possibility, at any rate, to say nothing more, of the propeller fouling the chain in the same way as the anchor fouled the chain, and the wonder to me is that the master of the Norman did not take action sooner than he did. He appears to me to have exercised a great deal of patience and to have abstained from taking any step until a time when it must have been getting on for dark, and it was high time, for the safety of the ship, to take some action. I do not see what action he could have taken except that which he did take-namely, slipping the cable and himself getting away out to sea.

In those circumstances it seems to me that the Port Victoria is liable for what occurred, and the natural consequence appears to me to have been a loss of £308/1/6. There will be judgment for the plaintiff for that sum with $costs'$ ."

At the trial three issues were framed as follows: -

- $1.$ Is the defendant properly sued? - Where did the fire start; at whose instigation and $2.$ responsibility? - 3. If defendant is responsible what damages?

On the first issue the learned trial Judge found that he was "inclined to hold that the defendant is wrongly sued personally," and said that "the plaintiff admittedly knows that defendant is not the owner of the property from which the fire escaped on to his land."

On the second issue the learned trial Judge seems to have found that the defendant started the fire but inasmuch as he took proper precautions he was not responsible for the damage that ensued.

Judgment was accordingly given for the defendant. $$ that judgment and decree the plaintiff appeals.

From the evidence of the defendant himself it is quite clear that he was the manager of the property on which the fire started; that he was primarily responsible for anything done on the property, and that the fire was set to certain maize stalks by his instructions. It was this fire that got away and caused damage to the plaintiff's property.

If this suit had been brought against the defendant's employers it might well have been argued that they were liable for the act of their servant done within the scope of the employment and in the interests of the master. But this liability of the master does not absolve the servant from personal liability.

When a person starts a fire on land it is his duty to prevent it from escaping and should it escape then he is liable for the damage caused thereby. This is well established law and is very concisely expressed in the maxim sic utere tuo ut alienum non laedas. The whole matter has been fully dealt with in. such familiar cases as Rylands v. Fletcher and Nichols v. Marsland.

I cannot do better than refer to the judgment of Sir Jacob Barth, C. J. in Cullinan v. Vair, reported in 9 E. A. R. L. p. 46, in which he says: "It is settled law that if a person start a fire on his own land he must control it. It is, I think, beyond doubt that burning of grass is practised in this country as a necessary part of husbandry. But it is, I think, also recognized that grass in the dry season is a highly inflammable article and consequently corresponding precaution should be taken ... It is in my opinion part of the duty of a reasonable man... that in all ordinary circumstances it will not spread. If such precautions are not taken then in my opinion if damage to another result it will be difficult for the originator of the fire to escape liability. The principle applicable in this case is that laid down in Rylands v. Fletcher (L. R.3 H. L. 330) which is an amplification of the maxim sic utere tuo ut alienum non When a man brings or uses a thing of a dangerous $laedas$ : nature on his own land he must keep it at his own peril and is liable for the consequences if it escapes and does injury to his neighbour."

The learned trial Judge has held that the defendant was not negligent because he had cleared away dry weeds and grass and that there was a large number of unburnt piles in the

intervening space. It does not seem to me to be sufficient thatthe defendant may have taken certain precautions if he started. a fire of such magnitude that it could not be controlled.

The learned trial Judge further held that the rule in. Rylands v. Fletcher did not apply since the defendant was carrying out a statutory duty. This statutory duty is only imposed on certain proclaimed districts under the Prevention of Disease Ordinance, 1930, sections 19 and $20^*$ . There was nothing before the Court to show that the property in question is in a proclaimed area. As far as this Court has been able to ascertain. the property is not in a proclaimed area. Moreover, the Ordinance uses the word destroy and does not use the word burn or destroy by fire. The question of statutory duty is dealt with in the case of the General Manager of the Uganda Railway v. H. Tarlton reported in 8 E. A. L. R. p. 193. The head note reads as follows: "When a railway management running locomotives under a statutory power allow inflammable grass to remain standing upon land adjoining the rail which is in their occupation and possession and sets fire to the grass with sparks. discharged from their locomotive, should the fire spread from off the land of the railway management on to that of adjoining owners, the management are not protected, in a suit for compensation by the adjoining owners, by the statutory power to. run locomotives."

In view of these decisions there should have been judgment for the plaintiff.

The amount claimed was Sh. $2,189/40$ . That amount was practically unquestioned by the defendant and the plaintiff was entitled to recover the amount claimed.

The judgment of the Court below must be set aside and judgment must be entered for the plaintiff for Sh. $2,189/40$ with interest at 8 per cent per annum from the date of filing until the 15th of June, 1931, and costs and interest on thedecretal amount at 6 per cent per annum from the 15th of Juneuntil the date of payment.

The appellant will also have the costs of the appeal.

SIR CHARLES GRIFFIN, C. J.-I concur.

SIR JACOB BARTH, C. J.-I agree.

\* The Diseases of Plants Prevention Rules, 1930, at p. 150 of the Proclamations, Rules and Regulations, 1930.