Dearden v Ryan & Anor

The primary issue in this case was whether the defendants, who hosted a 21st birthday party on their rural property, were liable in negligence for injuries suffered by the plaintiff. Another partygoer had poured a small amount of petrol on the plaintiff and set him on fire, during a “prank”. This prank followed an earlier incident, caused by an unknown person, in which fuel on the property was used to start a grassfire. Justice Crow held that the defendants were liable as they had breached their duty of care to the plaintiff by failing to take precautions to securely store the fuel away from their intoxicated guests. The risk of harm was foreseeable, particularly in light of the earlier grassfire and guests’ intoxication. Although another kind of prank could not be ruled out, Crow J was satisfied the injuries of the kind suffered would not have occurred had precautions been taken. Ultimately, damages were awarded to the plaintiff, apportioned 70% to the third-party partygoer and 30% to the defendants.

Crow J

2 June 2022

Background

During a 21st birthday party on the defendants’ property, a partygoer “pranked” the plaintiff by pouring a small amount of petrol on him and setting it on fire. [1], [21]–[27]. There was no animosity between the attendee and the plaintiff; the attendee’s intention being to prank the plaintiff by setting his swag alight. [22]–[29]. The plaintiff claimed the defendant was negligent and sought damages for his injuries.

The defendants, who organised the party, provided alcohol for guests and, in anticipation of them becoming intoxicated, arranged accommodation onsite and a breathalyser so guests could check their alcohol levels prior to attempting to drive. [3]–[4].

Petrol was stored onsite in agricultural sheds, but not near to the party. [2], [6]–[7]. However, after a blackout, petrol was brought in jerry cans to the generators onsite. [8]. While one of the defendants put two full jerry cans into an area away from guests to prevent access, a third jerry can that contained a small amount of fuel remained on a ute. [9]–[10].

The fuel from the small jerry can on the ute was later used to start a grassfire on the property. [11]–[12]. After the fire was put out, the small jerry can, then assumed to be empty, and the other two (full) were moved to a shed. [14]–[17], [19]-20]. The partygoer later located the small jerry can and “dribble[d]” its contents on the plaintiff before setting him alight. [26], [28]–[29].

Decision of the Supreme Court

His Honour Justice Crow found the defendants to be liable in negligence. His Honour held that they had breached their duty of care, which had caused his injuries. [117]. His Honour awarded $600,797.55 damages to the plaintiff against the defendant and awarded $420,558.29 to the defendant against the third-party partygoer.

Duty of Care

The defendants’ duty of care as an occupier to the plaintiff, to take reasonable steps to minimise the foreseeable risk of harm, was not in dispute at trial. [30], [51]–[52]. Sections 9 and 11 Civil Liability Act 2003 (“CLA”) were applied.

His Honour first considered, pursuant to s 9 CLA, what constitutes a foreseeable risk of harm. As set out in case authorities, the risk need not be identified with precision; rather it is sufficient to identify the kind of injury that was foreseeable. [32]–[37]. Here, the risk was “a risk of suffering a burn injury from an uncontrolled fire lit by an intoxicated guest from petrol made available by the defendants.” [38]–[39]. That risk was foreseeable as the defendant was aware of it; indeed, that is why the jerry cans were moved after the grassfire. [40]–[42]. It was not sufficient to have assumed the small jerry can was empty. [41].

Due to the grassfire that occurred prior to the incident, that risk of harm was not insignificant. [44]–[45].

Justice Crow also noted that the defendants’ duty of care was owed as an occupier, and not as a social host of the party. [46]–[57]. After considering Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 and Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, his Honour added that, assuming the partygoer’s conduct was criminal, the defendant still owed a duty of care not merely as an occupier but because they failed to control or supervise their guests and supplied them with “essentially an unlimited amount of alcohol”, in circumstances where the risk of harm by intoxicated and irrational guests was foreseen. [58]–[64]. That is, “the defendants have caused the source of danger by introducing the fuel source” in circumstances where the high level of intoxication and the prior grassfire made the risk of harm foreseeable. [71]–[74].

His Honour accepted the defendants’ evidence that she had “put a lot of thought into the party and how to ensure the safety of all guests, particularly the intoxicated guests.” [6]. However, his Honour found the defendant had not taken reasonable steps to prevent access to the fuel, which was easily accessible and located by the partygoer in an open-bay shed. [87]–[92]. The probability of harm, had the fuel storage precautions not been taken, was “low”. [93]. However, the likely seriousness of the harm “was extremely high” considering the prior grassfire, which required two dogs to be rescued. [95]. In light of this, and the low burden of taking the fuel storage precautions, the defendants breached their duty of care to the plaintiff. [96]–[98].

Causation

Although another prank may have been played on the plaintiff even if the fuel not been located, “but for the presence of the fuel, [the plaintiff] would not have suffered the injuries he suffered.” [99]–[105]. Without the fuel accelerant, the lighting of the plaintiff or his swag would have been slower and allowed time for intervention. [106]–[108], [111].

Considering s 11 CLA, it was appropriate that “the harm suffered by [the plaintiff] ought to be imposed upon the defendants, notwithstanding the criminal, and entirely reckless actions of [the third-party partygoer].” [115].

Damages

His Honour’s findings on the liability of the occupiers are given context by the damages apportioned. His Honour held that the partygoer “must bear the bulk of the apportionment as he has engaged in a reckless and criminal act fuelled by his high state of intoxication.” [194]. The damages were therefore apportioned 70% (partygoer) and 30% (defendants). [194]. The defendants were therefore awarded $420,558.29 against the third-party partygoer. [194]

Z Brereton of Counsel