Bugge v Brown
26 CLR 1101919 - 0327A - HCA
(Judgment by: HIGGINS J)
Between: Bugge
And: Brown
Judges:
Isaacs J
Higgins JGavan Duffy J
Subject References:
Employment
Negligence
Vicarious liability of employer
Scope of employment
Judgment date: 27 March 1919
MELBOURNE
Judgment by:
HIGGINS J
The standing wheat and other assets of farmer A have been burnt. The fire came from the land of farmer B, through the negligence of B's employee. Which is to bear the loss-A or B?
It has been found as a fact that the fire was lit by the employee Winter in order to cook some chops etc given to him by B for the midday meal of Winter and another employee; both of whom were sent to a distant part of B's property to cut thistles. The men were entitled to "keep" as part of their remuneration, and it was, of course, the duty of B to cause any meat given to be cooked. Winter was instructed by B to cook, but to cook at Old Kimbolton, a deserted homestead about a mile or more away from the work; and instead of going to Old Kimbolton he began to cook at an old chimney close to the operations. As my brother Isaacs points out, it is by no means established that the object of the instructions to cook at Old Kimbolton was to prevent the danger of the fire spreading; they are, at the least, equally consistent with the theory that the object was to relieve the men of the big frying-pan commonly used for the shearers. But the object does not matter; the actual instructions I accept as found by the Court below. The finding of negligence-negligence in the lighting and care of the fire-on the part of Winter has not been seriously impugned; but it is said that, as between A and B, A must bear the loss because the cooking was not done at the authorized place.
After finding the facts, the learned Chief Justice of Victoria decided "on the principles adopted by the Court of Appeal" in England in certain cases under the Workmen's Compensation Act, that "Winter's act in lighting the fire where he did was not within the scope of his authority," and that therefore the defendant was not liable. If an employer is not to be liable for the negligence of his employee unless his instructions are strictly followed, as to time, place and method, then it will be easy for employers to frame forms of authority for their employees, and so absolve themselves from responsibility as to the consequences to their neighbours of the employees' negligence. I cannot think that we are forced to any such conclusion. It was B, not A, who chose Winter as an employee; it was B, not A, who could superintend and control him.
The principle on which the Judicial Committee of the Privy Council has based the liability for damage by fire as between adjoining owners is that expressed in the maxim Sic utere tuo ut alienum non laedas (see Black v Christchurch Finance Co [F66] ). But for an Act, 14 Geo. III. c. 78, s. 86, it would seem that ordinarily the law as to fire is the same as with regard to other dangerous things introduced on land, and that the owner of the land on which the fire starts is liable to his neighbour for the consequences of its escape. That Act, however, according to the decisions (Filliter v Phippard [F67] ) limits the liability to cases of negligence; and I assume (it is not controverted) that the Act is in force in Victoria. But the negligence may be on the part of employees, or even on the part of an independent contractor (Black v Christchurch Finance Co [F68] ). In that case, the contract was to fall and burn bush, the falling to be by a certain date, "and burn in a favourable time about February next." The contractor, in lighting the fire, did not take "reasonable precautions" against its spread, adopted no "preventive measures"-was, in short, guilty of negligence. The burning actually took place on 23rd December; but the Judicial Committee said that the landowners "having authorized and entrusted the operation ... to another ... must answer for his" (the contractor's) "proceedings, however much he may have violated their instructions or the detailed conditions of his contract with them. ... 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 persons injured by the act of their contractor. ... It could not be said he" (the contractor) "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." The same doctrine as to liability is extended to the case of frauds committed by an employee although the principle of Sic utere tuo ut alienum non ledas is hardly applicable. A solicitor's clerk who did the conveyancing business induced a client by fraud to sign conveyances etc, and used the proceeds for his own purposes. There was no suggestion that the solicitor had authorized what was done by the clerk; but the solicitor was held liable to the client (Lloyd v Grace, Smith & Co [F69] ). The fraud was done "in the course of the master's business"-`in the course of" the clerk's "employment." The expressions of Willes J. in Barwick v English Joint Stock Bank [F70] , at p. 265 were explained and adopted:
"The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service ... though no express command or privity of the master be proved. ... In all these cases it may be said, as it was said here, that the master had not authorized the act. It is true that he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent has conducted himself in doing the business which it was the act of his master to place him in."
The doctrine is stated in Story on Agency, s. 452:
"The principal ... is held liable ... for the frauds, ... torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them." (See also Limpus v London General Omnibus Co [F71] .)
It seems clear from these and other cases that the phrases "in the course of the employment," "in the course of the service," "within the scope (or sphere) of his authority," etc, do not mean "in exercise of his authority" in the same sense as in the case of contracts made by agents. The precise terms of the authority are not the criterion of liability: the function, the operation, the class of act to be done by the employee, is the criterion-whatever be the instructions as to the time, the place, or the manner of doing the act. In other words, the employer is liable for damage resulting from the negligent use of a fire on his land if he has sanctioned the lighting of the fire anywhere on his property for the occasion. Applying the words of Willes J. in Barwick's Case [F72] , the question is: Did the employer put the employee "in his (the employer's) place to do that class of acts"? In this case Winter was put in the employer's place to light a fire and cook the meat, the employer's duty being to cook the meat or to get it cooked. Winter was entrusted by the employer with the function, was not acting of his own whim but for his employer's purposes.
As for the decisions under the Workmen's Compensation Act, I cannot think that they are safely applicable to cases where third parties are injured who are in no privity with either the employer or the employee. The employee is privy to the terms of the authority; the adjoining owner is not; and the Act (s. 1) makes the employer liable to the employee for injury by accident "arising out of and in the course of the employment." It has been laid down that the words "out of ... the employment," indicate that there must be a causal relation between the accident and the employment itself-or an order, expressed or implied, given by the employer (Chas. R. Davidson & Co v M'Robb [F73] ). There is no such causal relation necessary in such a case as the present. Yet it is significant that even in these decisions under the Workmen's Compensation Act the Judges have rejected the narrow meaning for "the course of the employment." They ask themselves the question, did the order (disobeyed) limit the sphere of employment, or was it merely a direction to do things in a certain way within the sphere of employment. This distinction is found in the very cases to which the Chief Justice refers. In Plumb v Cobden Flour Mills Co [F74] it is expressly stated that even a violation of the order is not conclusive as to excess of the scope of the employment. In Weighill v South Hetton Coal Co [F75] the learned Judges distinguished between misconduct within the sphere or scope of employment and misconduct outside that sphere or scope. So, too, in Harding v Brynddu Colliery Co [F76] ; and Kennedy L.J. said:
"Provided that he meets his death by accident in the performance of the particular piece of work which it is his duty to do, I do not think that the mere fact of non-compliance with a limitation as to area, any more than the mere fact of non-compliance with a limitation as to method, if the purpose of the non-compliance is the effective furtherance of the purpose of the workman's proper task, ought to be held necessarily, or indeed ordinarily, to put his death by the resulting accident outside the employment. ... `Sphere of employment' appears to me" (said the learned Judge) "to be rather a dangerous metaphorical expression, in so far as it tends to introduce a suggestion of special importance, in regard to s. 1 of the Act, of the workman's obedience to an order as to the local area of working."
In Barnes v Nunnery Colliery Co [F77] Earl Loreburn says:
"The thing he does imprudently ... is different in kind from anything he was required or expected to do";
and then the act is treated as outside the "sphere" of employment. Such a principle, of course, leads to startling differences of opinion between the Judges-so great is the difficulty in determining what is a difference in kind and what is not a difference in kind. It is hard to divide one authority into two parts, one part of the essence and the other part not, and this was the difficulty, as I think, of the Chief Justice. Nevertheless, even if this Court were bound by the decisions under the Workmen's Compensation Act as to the limits of the responsibility of adjoining owners for fire, I should feel justified, on the decisions, in finding against the defendant. But, according to my view, it is better to keep clear of these cases, decided under the words of a very exceptional Act.
In my opinion, the appeal should be allowed.