Burnie Port Authority v General Jones P/L

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Citation: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 635-40 [15.120] or here

Contents

Background facts

  • The Plaintiff's [General Jones] property was stored in the building of the Defendant's [Burnie].
  • The Defendant contracted some independent contractors to carry some work, and in their negligence they caused a fire and burnt down the building.
  • As a result, the Plaintiff's property was destroyed or damaged,

Legal issues

Judgment

  • The court holds that the principle in Rylands v Fletcher[1] (which provides that a defendant is strictly liable for the escape of a dangerous substance without the need to prove fault, if it has anything on his land which is dangerous and non-natural) is absorbed into the ordinary law of negligence.
  • A special relationship of responsibility gives rise to a special, personal (non-delegable) duty of care.
    • "[T]he 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'."[2]
  • These relationships are present where there is an element of control by the defendant, or vulnerability of the plaintiff.
    • "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."[3]
  • The reason why the principle in Rylands v Fletcher (mentioned above) is absorbed is because it necessarily "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."[4]
  • An example of such a relationship of control/vulnerability is where a person is in control of the premises and who has taken advantage of that control to introduce thereon a dangerous substance.
  • So, the question becomes "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."[5]
  • "The starting point for answering that question must be a consideration of what relevantly constitutes a dangerous substance or activity."[6]
  • A dangerous activity can be characterised as one in which the probability and magnitude of the risk were high enough to make a reasonable person exercise special care.
    • "[T]he 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."[7]
  • This includes 'collateral' negligence - that means, activities which can become very dangerous if performed negligently (e.g. transporting safe chemicals, which, if mixed together, are very dangerous).
  • In the present case, the work done by the contractors (welding etc) was dangerous. If one of the containers would catch alight, it would be impossible to control the fire and it would be sure to destroy the building. (collateral negligence)
  • "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."[8]

References

  1. (1898) LR 3 HL 330
  2. (1994) 179 CLR 520, 550
  3. (1994) 179 CLR 520, 551
  4. (1994) 179 CLR 520, 552
  5. (1994) 179 CLR 520, 557-8
  6. (1994) 179 CLR 520, 558
  7. (1994) 179 CLR 520, 558-9
  8. (1994) 179 CLR 520, 560
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