Ryan & Anor v Dearden & Anor [2023] QCA 20
Originating Court & Decision:
Supreme Court at Rockhampton
Dearden v Ryan & Anor [2022] QSC 111
Key takeaways
- It remains the case that the duty of care owed by a party host does not extend to protecting partygoers from the criminal acts of third parties in the absence of a special relationship
- A plaintiff must particularise with a certain level of specificity the actual risk of harm that eventuated
- A carefully drafted request for particulars can limit the scope of the pleaded claim.
Background
Mr Dearden (Plaintiff/First Respondent) suffered severe burns to his upper body and limbs when he attended, as an invited guest, a friend’s 21st birthday party at a farm outside Jondaryan, Queensland. He was burnt when another guest, Mr Taylor (Third Party/Second Respondent), deliberately poured a small amount of petrol on to Mr Dearden’s clothing while he slept and then set it alight using a cigarette lighter.
Mr Taylor found the petrol in a jerry can that was brought to the farm to fill up a generator which was used to restore power to the farm for the party after the power went out. The jerry can was stashed away in a terracotta pot in an unlit shed a short distance from the homestead and party area after unknown persons had used some petrol to light a small grass fire which was quickly put out.
Mr and Mrs Ryan (First and Second Defendants/First and Second Appellants) were the owners and occupiers of the farm and were hosting the party for one of their sons. They were sued by Mr Dearden for damages for personal injury. Mr and Mrs Ryan in turn joined Mr Taylor on the basis that it was he who set fire to Mr Dearden.
Originating Court Decision
The matter proceeded before His Honour, Crow J. Mr and Mrs Ryan were found liable by Crow J in an amount of $600,797.55. Crow J also apportioned 70 per cent of the liability to Mr Taylor on the Third Party action.
According to Crow J, the basis of Mr and Mrs Ryan’s liability was that they were the occupiers of the property and introduced the risk of injury to the premises.
In his Reasons for Judgment, Crow J considered the principles derived from previous decisions and found that:
- the true source of the potential injury was an uncontrolled fire
- the general causal mechanism of the injury sustained was the use by an intoxicated guest of Mr and Mrs Ryan’s petrol to start a fire
- the particular harm which materialised was the burn injury suffered by Mr Dearden
- the circumstances in which the harm occurred was the lighting of a fire by an intoxicated guest.
Crow J concluded that the facts, as outlined, identify the risk as a risk of suffering a burn injury from an uncontrolled fire, lit by an intoxicated guest from petrol made available by Mr and Mrs Ryan. In arriving at this conclusion, Crow J found that the petrol used by Mr Taylor had been found by him in a small jerry can inside a shed near the homestead; Mr Taylor had entered the shed to search for fuel to inflict on Mr Dearden what he intended as a prank; Mr and Mrs Ryan had created a source of danger by having that jerry can in the shed.
Crow J found there was a foreseeable risk that a guest at the party would use the fuel to start “an uncontrolled fire” and cause someone to be injured; Mr and Mrs Ryan thereby owed a duty of care to those at the party to avoid that risk by removing the jerry can to a place where it would not be found by someone who was wanting to start a fire at the party; by omitting to do so they were negligent; and their negligence was a cause of the harm suffered.
Appeal
On appeal, McMurdo JA, with Flanagan JA and Mullins P agreeing, found for Mr and Mrs Ryan and ordered the judgment for Mr Dearden against Mr and Mrs Ryan be set aside, Mr Dearden’s claim be dismissed, the order for costs made in the Trial Division against Mr and Mrs Ryan be set aside, and that Mr Dearden pay to Mr and Mrs Ryan their costs of the proceedings in the Trial Division and of the appeal.
The Duty
Crow J had held that it was not in dispute that Mr and Mrs Ryan, as occupiers of the farm, owed to Mr Dearden a duty of care to take reasonable steps to minimise the foreseeable risk of harm[1].
In his decision, he adopted the analysis of Applegarth J in Walker v Greenmountain Food Processing Pty Ltd[2] in respect of the analogous provisions in the Workers’ Compensation and Rehabilitation Act. In essence, in order for a defendant to be found negligent, it is not necessary that the defendant should have reasonably foreseen that the particular circumstances in which the plaintiff was injured might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred. Necessarily, the risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
On appeal, it was noted that it was no part of the duty of care pleaded against Mr and Mrs Ryan that they controlled, or were bound to control, the conduct of their guests, or at least to take reasonable steps to do so. Nor was it pleaded that they had been negligent by not doing so. Similarly, in the final submissions to Crow J, counsel for Mr Dearden submitted that Mr and Mrs Ryan had the capacity to control the use of petrol at their property by what Mr and Mrs Ryan did with their petrol rather than by any personal control of Mr Taylor.
The Court of Appeal judges noted that in the High Court of Australia’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil, Gleeson CJ stated that 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 of such harm is foreseeable.[3]
As Gleeson CJ said in Modbury, the general rule is founded upon considerations of practicality and fairness. In their view, the Court of Appeal judges considered that 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.[4]
In summary, it was the Court of Appeal’s finding that the general rule was not displaced in this case. In their view, Mr and Mrs Ryan were not liable because they were not obliged to take such steps as were necessary to prevent Mr Taylor from harming another guest by deliberately setting fire to his clothing and further, questions of breach and causation under sections 9 to 11 of the Civil Liability Act 2003 (Qld) did not arise.[5]
What does this mean for insurers?
This decision demonstrates that a plaintiff in any proceedings brought, needs to particularise with a certain level of specificity the actual risk of harm that eventuated and which it is alleged the defendant ought to have protected against. Those representing defendants, through carefully drafted requests for further and better particulars, should extract with specificity the case their clients are expected to meet.
The decision at first instance had the potential to bring to an end the time honoured backyard birthday party. However, the Queensland Court of Appeal has confirmed that the duty of care owed by a party host does not extend to protecting partygoers from the criminal acts of third parties in the absence of a special relationship[6]. In so doing, the party can start again!
From an insurer’s point of view, if the decision at first instance was to stand, the potential for claims resulting from incidents in residential party venues would likely dramatically increase. This in turn could have required insurers to refine or limit the scope of coverage under an eligible policy which would respond to such an incident or increase premiums.
Update
Mr Dearden (the plaintiff) did file an Application for Special Leave to Appeal to the High Court.
On 10 August 2023, the Application was dismissed with costs by the High Court. The decision was upheld that the duty of care by a party host does not extend to protecting their guests from deliberate criminal acts of third parties.
This article was written by Principal Matthew McDonald and Associate Simon de Chasteigner du Mee from our Insurance team. Please contact Matthew if you have any questions or would like more information.
[1] Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 at [29]; (2000) 205 CLR 254 at 267
[1] Dearden v Ryan & Anor [2022] QSC 111 at 30
[2] Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, [77] – [79].
[3] Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 at [29]; (2000) 205 CLR 254 at 267
[4] Ibid at 266.
[5] Ryan & Anor v Dearden & Anor [2023] QCA 20 at [36].
[6] Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 at [29]; (2000) 205 CLR 254 at 267