Goldman v Hargrave (1967)

Abstract

In June 1966 the Privy Council upheld the decision of the High Court of Australia in 'Goldman v Hargrave' that an occupier of land was liable for failing to prevent the spread of a fire from his land. The fire had started as a result of a lightning strike and had spread onto the property of his neighbours, causing damage to property. The cause of action recognised by the Privy Council as establishing liability was negligence and whether there was any overlap with the boundaries of nuisance was a question of classification which need not here be resolved. The shift from nuisance to negligence represented by Goldman is the justification for treating it as a leading case, and this chapter explores the reasons for a negligence-based analysis. This exploration is justified if for no other reason than the primary authorities on which the extension was based were actions in private nuisance, and the leading authority, 'Sedleigh-Denfield v O'Callaghan', suggested that there were significant differences between liability in negligence and in private nuisance. The chapter also considers the wider historical question of why this particular scenario was litigated and why it proved a good vehicle for extending the liability of an occupier, whether in private nuisance or in negligence. It argues that the extensive bush fires in Western Australia in the summer of 1960/61, and the particularly unusual circumstances surrounding the defendant, Alan Goldman, made the fire that spread from his property an ideal test case for liability arising from natural hazards on one's land. In doing so, the chapter challenges the notion that developments in the law can be understood in isolation from their wider historical context. This is not to suggest that legal principles play no, or even a predominate, role in legal reasoning, but merely to argue that attempts to explain legal reasoning solely within a theoretically satisfying conceptual structure risk being ahistorical.