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Decisions of the Superior Courts of New South Wales, 1788-1899

McCarthy v. Kenny [1805] NSWKR 2; [1804] NSWSupC 2

negligence - contributory negligence - causation - wheat, damage by fire

Court of Civil Jurisdiction

Atkins J.A., 28 March 1805

Source: Sydney Gazette, 31 March 1805, 2 [1]

On Wednesday the court sat for the return of writs, and several causes were heard, among which one of considerable importance to the cultivator made its appearance. This was an action brought by Denis McCarthy, of Hawkesbury, versus John Kenny, of the same place, for the recovery of 500 bushels of wheat, as damage sustained by the plaintiff owing to the defendant's setting fire to a spot of grass upon his own ground, which communicating the plaintiff's stacks, destroyed his entire crop.

Anthony Rope, called for the plaintiff, deposed that he saw the defendant on the day stated set fire to the grass on his own farm in three different places and shortly afterwards the wind rose considerably, its direction towards the stacks which in about an hour after were on fire, and were totally consumed. He admitted that the stacks had for the space of several days before [been] nearly surrounded by fires in the brush kindled by natives, and could not say positively that they were destroyed in consequence of what the defendant had done, but admitting which to have been the case, the plaintiff was in some respects culpable, in neglecting to secure his wheat from possible accident, for which he had sufficient time, as the night before the danger from the surrounding fires was evident and extreme.

Mrs Rope's testimony corroborated the foregoing, and at the same time declared the distance from the plaintiff's stacks to the spot of ground fired by the defendant not to exceed between 20 and 30 rods.

Richard Alford also spoke to the circumstances of the defendant's setting fire to the grass on his own ground in three different places, but could not say the damage sustained proceeded therefrom.

Patrick Ducey deposed that on returning with the plaintiff from the wharf, they were astonished and confounded at the situation of the stacks, which were then half burnt. That Anthony Rope was assisting in extinguishing the flames and repeatedly declared that the third fire kindled by the defendant had done the mischief. This evidence also positively affirmed that the defendant had in his own barn subsequently mentioned in his presence that he certainly had occasioned the plaintiff's loss, though most unintentionally.

John Tiernan also heard the defendant acknowledge he had burnt the plaintiff's wheat, adding, that had the latter not preferred a complaint he would have willingly made a compensation to half the amount.

Ensley McGrath deposed that the quantity of wheat in the stacks consumed could not, in his opinion, be less than 450 bushels. The plaintiff's evidence then closing, the defendant called upon several witnesses, whose joint testimony went to say that the plaintiff's property was in danger of being destroyed by native fires the night before the unfortunate event did take place. That he was then advised to adopt certain measures of security by clearing round about the stacks, that which he had not done though if such precaution had been taken, "it was most improbable the accident should have happened" and lastly, it was even possible that the damage might have been occasioned by the natives' fires, and not by either of those kindled by the defendant. The evidence of Ducey and Tiernan the defendant endeavoured to do away upon the grounds of improbability that a man circumstanced as he was, and conscious that a prosecution was likely to ensue, should acknowledge unnecessarily all that the plaintiff could possibly wish to prove, viz. that he the defendant had set fire to his stacks, whether willingly or otherwise.

The points for the consideration of the court appeared to be whether the plaintiff had taken every precaution that he should have done for the security of the stacks, by clearing away as much of the surrounding as was absolutely necessary to their security, and herein from the evidence it appeared, he had himself been culpable. The next was whether the defendant had not acted highly imprudently by firing his grounds until he was well assured his neighbours were secured from the possibility of accident, and as it was not made to appear that he had received the information necessary to warrant him in so doing. He consequently became liable from an act of imprudence. The court therefore, after taking a retrospect of the whole evidence, returned a verdict for the plaintiff. Damages ¿64, about one half of the sum sued for.


[1] To present-day lawyers, this appears to be a simple matter of apportionment of damages for contributory negligence. But there was no such law in 1805. When the notion of contributory negligence developed in England at about this time, it was a complete defence, not a reason to apportion damages. Was this, then, an invention by Richard Atkins, the Judge Advocate?

See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., 112-113.

Published by the Division of Law, Macquarie University