Contingency and the Common Law: 'Hargrave v Goldman' at First Instance

The Privy Council decision in 'Goldman v Hargrave' (1967) is an important case on the liability in negligence of occupiers for the spread of things that arise naturally on their land and spread to a neighbour's property and cause damage. Although both the High Court of Australia and the Privy Council found in favour of imposing a legal duty on the occupier, the duty was rejected at first instance in the Supreme Court of Western Australia. This paper considers the way that counsel argued the case before the judge at first instance. The result is a salutary reminder that explanations of particular decisions involve not only an analysis of the historical context in which they are made but also of how legal arguments were placed before the court.