Liability issue ignited, despite criminal firestarter
A plaintiff was awarded damages for severe burns sustained during a party on the defendants’ property in circumstances where criminal conduct was established.
- The duty of care owed by the defendants was analysed at length in this matter. Justice Crow assessed whether the defendants’ duty of care, as occupiers of the land, included a duty to take reasonable care as social hosts to prevent harm from an uncontrolled fire lit by an intoxicated guest using petrol found on the property. The issue was complicated by the criminal nature of the conduct engaged in by the third party.
On 9 February 2019 the plaintiff, Charles Dearden, suffered serious burns whilst at a friend’s 21st birthday party which was held at the homestead on the defendants’ property. The defendants’ property was vast and held agricultural plant and equipment as well as a fuel store.
The defendants expected that approximately 40-50 mature-aged guests and 'a hundred and something… of the young ones' would attend the party. The aforementioned 'young ones' were the friends of the defendants’ son and were mostly aged between 20 and 21 years. Alcohol was supplied by the defendants in large quantities. It was anticipated that many of 'the young ones' were likely to become intoxicated during the festivities.
Due to the nature of the party and the remote location of the property, the defendants were careful to take steps to prevent the risk of harm to party attendees, including ensuring that persons did not drive home after the party whilst affected by alcohol, removing fuel sources from the vicinity of the party and stationing family members by the creek to deter people from swimming.
Early in the evening, the electricity supply failed which caused a 'mad panic'. Mr Ryan, one of the two defendants, drove to the petrol hub which was situated away from the homestead. He loaded a generator and two jerry cans of fuel (one 20L and one 5L) into a utility vehicle and drove back to the homestead. When Mr Ryan arrived back at the homestead, he used the smaller of the two jerry cans to fill the generator and supply electricity to the party until the electrician arrived. The small jerry can was essentially emptied in the process. Mr Ryan then placed both jerry cans between the ute, which was parked very close to the wall of the house, and the wall of the house.
At some point in the evening, a grass fire was started by an unknown person. The small jerry can was found nearby the grass fire. After putting the fire out, the defendants’ elder son removed the small jerry can from the vicinity of the fire and placed it in a terracotta pot in a shed near the homestead. The shed did not have doors and was not locked.
Later in the evening, a group of young men, including the third party to the proceedings, Mr Taylor, went to wake up the plaintiff who was sleeping in a swag a short distance away from the homestead. On his way to wake up the plaintiff, Mr Taylor went looking for fuel as he, in his drunken state, had formed the intention in respect of the plaintiff 'to wake him up via lighting his swag on fire'. After locating the small jerry can in the shed, Mr Taylor poured fuel onto the plaintiff’s swag and lit the fuel on fire. The plaintiff subsequently caught on fire and suffered severe burns.
The decision at trial
It was not in dispute that the defendants, as occupiers of the property, owed the plaintiff a duty of care to minimise the foreseeable risk of harm (general occupier’s due of care), however the general scope of the duty was tested.
The trial judge commenced his analysis by establishing that the use of the fuel remaining in the small jerry can to start the fire was required to be foreseeable, not the act of throwing fuel onto the plaintiff. Justice Crow referred to the findings of Gummow J in this regard, who observed in Hughes v Lord Advocate that injury by fire may be foreseeable even if the specific preceding action (an explosion) was not.
Justice Crow found that the defendants knew that there was a risk of a guest suffering a burn injury from a fire due to the previous grass fire earlier in the evening, particularly in circumstances where there were a hundred or so potentially intoxicated young adults at a party. Further, although the small jerry can was essentially emptied when filling the generator, the trial judge considered that the defendants ought to have expected that there was a small amount of fuel left in it to start a fire and cause injury.
Justice Crow stated that the sheer stupidity of lighting a fire at a party in other circumstances would likely be sufficient to categorise the probability or risk of occurrence of injury as low. However, the earlier grassfire placed the idea of starting a fire to wake up the plaintiff in the mind of Mr Taylor. As such, the risk was determined to be not insignificant.
Social host liability
Counsel for the defendants argued that the concept of social host liability (which has been accepted in the US and Canada) had not been accepted in Australian common law. In Parissis & Ors v Bourke  NSWCA 373 Bryson JA determined that in general, social hosts do not owe a duty of care to social guests as the common law duty of care does not extend to a requirement to control another person to prevent that person from doing damage to a third person. However, in circumstances where the act of a third person could not have taken place but for the social host’s fault or breach of duty of care, where the risk of harm was foreseeable and the host had the capacity to prevent the harm, then a duty of care may be brought into existence.
It was not suggested by the plaintiff that the defendants, as social hosts, owed a duty of care to supervise social guests, and the trial judge accepted that in general, social hosts do not owe duties to social guests. However, in this instance, the trial judge found that the source of fuel (the small jerry can), and its accessibility to social guests (who were accepted to be highly intoxicated), combined with the earlier grassfire, placed upon the defendants a duty to take reasonable care to prevent harm from an uncontrolled fire lit by an intoxicated guest using petrol made available by the defendants. This duty did not arise from the defendants’ position as a social host but rather as an occupier.
In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, a claim was brought against an occupier for failing to prevent a criminal offence. An injury occurred when an employee working in a shopping centre was attacked whilst walking to his car in a carpark. Liability of the occupier was established on the basis that the occupier should have ensured that lighting in the carpark remained illuminated until employees had left their employment
In this regard Gleesen J said:
… The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk is foreseeable.
There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is impossible to argue that the case would have been taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it.
Accordingly, Justice Crow concluded that the defendants owed the plaintiff a duty of care, despite the conduct of the third-party being criminal in nature. The reasons provided for this conclusion were as follows:
- The duty of care was not solely due to the defendant’s’ position as occupiers of the property. The defendants’ duty of care extended beyond the general occupier’s duty of care due to other relevant factors and circumstances preceding the incident;
- The defendants failed to control the irrational behaviour of the intoxicated guests by supervising those guests acting in an unacceptable and unruly manner;
- The various Liquor Acts in Australia direct persons to minimise anti-social conduct both on and off licensed premises associated with the consumption of alcohol (the guests in this case were supplied with essentially an unlimited amount of alcohol and it was expected that many would become intoxicated and therefore may act in an irrational manner);
- The introduction of the fuel source into a situation where an intoxicated person may start a fire; and
- The first grassfire combined with the continued consumption of alcohol called for prudent steps on the part of the defendants to deal with the high level of risk and to remove the fuel source.
The trial judge ultimately found that the defendants were liable in negligence and damages were awarded to the plaintiff.
No issue was raised in the defendant’s’ case against Mr Taylor as third party other than apportionment of liability.
Damages were apportioned on a 70:30 basis between the defendants and Mr Taylor.
Implications for you
The decision is an important demonstration of how a duty of care owed by occupiers may extend beyond the general duty of care in particular circumstances, such as where guests are intoxicated and have access to dangerous substances.