Ryan & Anor v Dearden & Anor

The appellants were found liable in negligence for severe burns suffered by a guest of their son’s 21st birthday party, which they hosted on their farm. The trial judge considered the appellants had created a source of danger, thereby displacing the general rule that “one man is under no duty of controlling another man to prevent his doing damage to a third”. The appellants had brought jerry cans of fuel onto the property from a remote location and it was foreseeable that an intoxicated guest might use this fuel to start a fire causing harm. The Court of Appeal found the trial judge had erred in this determination. Foreseeability does not displace the general rule. Additionally, the occupiers cannot be held to owe a legal duty to prevent harm being caused by a third party misusing things kept in an ordinary way on their properties; to do so would be to make “the burden… intolerable”. The Court of Appeal allowed the appeal and set aside the judgment and cost order against the appellants.

Mullins P and McMurdo and Flanagan JJA

17 February 2023

Background

The first respondent, Mr Dearden, suffered severe burns after another guest at a 21st birthday party poured petrol on his clothing and set him alight. [2]. The birthday party was hosted by the appellants for one of their sons at the farm they occupied. [3].

At first instance, the appellants were found liable, as occupiers of the farm, for personal injury to Mr Dearden in the amount of $600,797.55. [3]. Robert Taylor, who had set Mr Dearden alight in a “prank”, was joined as a third party and ordered to pay 70 per cent of that amount. [3]. Mr Taylor was also charged and pleaded guilty to causing grievous bodily harm to Mr Dearden. [16].

Mr Taylor had located fuel inside a shed on the property. [3]. He grew up on a farm, so expected there to be fuel in the shed. [12]. Ordinarily, fuel was not kept in that shed by the appellants; instead kept in sheds five minutes’ drive from the homestead. [5]. However, after needing to fuel generators on the property, jerry cans were brought to the homestead. [5], [7]. Two jerry cans were moved into the rear of the shed by one of the appellants to avoid guests, particularly those intoxicated, having access to it. [5], [7]. A third jerry can, which was left in the back of the appellants’ utility, was used by a guest to start a grass fire. [9]. After extinguishing that fire, the jerry can was moved inside the doorway of the shed by one of the appellant’s sons, due to concerns of another fire being lit. [10].

The trial judge accepted the appellants had carefully planned for the safety of the event, including by ensuring guests did not drive home while intoxicated. [6].

The trial judge considered the appellants had created a source of danger by having the jerry can of fuel inside the shed, there was a foreseeable risk that a guest would use the fuel to start a fire and cause someone injury, and they owed their guests a duty of care to avoid such risks by putting the jerry can in a place where it could not be found. [3]. Failure to do so constituted negligence and resulted in the harm to Mr Dearden. [3].

Decision of the Court of Appeal

The Court of Appeal allowed the appeal and set aside the judgment and costs order against the appellants. [1], [44], [45]. The Court held no duty of care was owed and the claim against the occupiers should have been dismissed. [1], [44], [45].

The Court of Appeal found there was no reason in this case to depart from the general rule that “one man is under no duty of controlling another man to prevent his doing damage to a third” (per Smith v Leurs (1945) 70 CLR 256, 261-2; and Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 (“Modbury”)). [17]–[19]. It was not part of any duty of care owed by the appellants that they control the actions of their guests or take reasonable steps to do so. [19]. Indeed, despite some confusion by the trial judge, the pleaded case was not that the appellant’s liability arises from a capacity to control their guests. [20]–[21], [32].

The Court of Appeal referred to Lord Goff’s judgment in Smith v Littlewoods Organisation Ltd [1987] AC 241 at 272–274. [24]. In that case, Lord Goff applied the exception to the general rule that a person may be liable for damage suffered by the deliberate wrongdoing of a third party where the person had created the source of danger. [24]. Importantly, the Court of Appeal emphasised, Lord Goff also recognised that there are many commonplace household items which are dangerous and “it would be quite wrong if householders were to be held liable in negligence for acting in a socially acceptable manner”. [25].

Gleeson CJ in Modbury explained the general rule is “based upon considerations of practicality and fairness”. The general rule is not displaced by the mechanism of foreseeability. [27]. In this context, “it is relevant to consider the nature of the conduct of the third party which is the immediate cause of the relevant injury or damage”. [28]. Regardless of how foreseeable it was that someone would use the fuel to start another grass fire, “it was another thing to say that a risk of the deliberate ignition of the clothing of a guest as he slept was reasonably foreseeable, such that the appellants owed a duty to take precautions against it”. [33].

The appellants had not created a “special danger” by bringing the fuel to the homestead. [34]. Even had the appellants kept the fuel there normally, this would have been unremarkable. [35]. Indeed, this is why Mr Taylor, having grown up on a farm, expected to find fuel there. [35]. The same may be said of small quantities of fuel kept in suburban sheds and garages. [35]. “If occupiers were under a legal duty to take steps to prevent harm being caused to another by a third party from the misuse of things kept in an ordinary way on their properties, the burden would be intolerable.” [35].

The Court of Appeal therefore concluded that the general rule was not displaced in this case and the appellants did not owe a duty of care to prevent Mr Taylor causing harm by deliberately setting fire to Mr Dearden. [36].

A Hughes of Counsel