Scope of duty of care re-examined in a recent burns case

By Peter Dovolil - Partner & James Mullins - Solicitor
 

A case involving a house party, a jerry can of fuel and a person subsequently being set alight was recently considered in Ryan & Anor v Dearden & Anor [2023] QCA 20.  The case, which was an appeal of a decision made in Dearden v Ryan [2022] QSC 111, re-examined the scope of an occupier’s duty of care.

Background

Terence Ryan and Nicole Ryan (the appellants) organised a 21st birthday party for their youngest son, Daniel Ryan, at the appellants’ rural property. Charles Dearden (the first respondent) was a guest at that party. The first respondent suffered severe burns to his upper body and limbs. The burns were suffered when a friend of the first respondent’s, Robert Taylor (the second respondent), used a lighter to ignite petrol which he had poured on the first respondent’s clothing while he was sleeping. This was not the subject of any malice, but an attempt at a practical joke.

Facts

Approximately 40 to 50 mature-aged and 100 or so contemporaries of Daniel Ryan attended the party. The party was well planned for, including for the safety of the guests. This included organising an area for guests to sleep to ensure they would not drive while intoxicated.

At around dusk on the day of the party, the electricity supply at the property failed. Mr Ryan drove in his utility vehicle to a petrol hub at the adjacent property and returned with a generator, two full jerry cans of fuel (20L jerry cans) and a smaller full jerry can (5L jerry can). The small jerry can was used to fill the generator tank. The large jerry cans were not used and were placed in a relatively inaccessible position between the utility vehicle and a wall of the homestead. The trial judge found this was because Mr Ryan was alert to the danger should the fuel become accessible to the guests, particularly those that were intoxicated. The small jerry can remained in the back of the utility vehicle.

At approximately 11pm, a grassfire was started by some of the guests on the lawn between the homestead and the shed. Upon arrival at the scene, Mr Ryan found the small jerry can adjacent to where the fire had been lit. He told his older son, Matthew Ryan, to put it in the shed. Matthew Ryan placed it inside a terracotta pot approximately a metre to the front of the shed. Mr Ryan placed the two large jerry cans in the rear of the shed.

Sometime after midnight, the first respondent fell asleep in a swag in the carpark on the property. The second respondent, in an attempt to wake the first respondent, went to the shed and found the small jerry can of fuel. The second respondent poured the fuel on the first respondent and used a lighter to ignite the fire. The first respondent subsequently suffered burns.

Trial Decision

The first respondent sued the appellant for damages for personal injury and joined the second respondent as a third party.

The reasons for the trial judge’s decision were discussed in a prior newsletter from Carter Newell which can be accessed clicking here.

In summary, the trial judge concluded:

1. the appellants were the occupiers of the property and had created the conditions for the risk to materialise by leaving the small jerry can of fuel where it was accessible to guests at the party;
2. in such circumstances, as well as the known intoxicated state of the guests, and the fact an earlier grassfire had been lit, the risk was foreseeable;
3. there was a low level of burden in taking precautions to prevent the risk (by ensuring the fuel was taken back to the adjacent property or placing it in a locked area not accessible by guests);
4. conversely, the seriousness of the harm to be suffered from a fire was significant.
5. The case could be distinguished from Modbury Triangle Shopping Centre Pty Ltd v Anzil¹ (“Modbury”) on account of, amongst other things, the level of control exercised by the appellants over the accessibility of fuel, the harm to which various Liquor Acts are directed, and the appellants’ responsibility for the creation of the circumstances leading to the risk of harm; and
6. had the precautions been taken, the incident would have been avoided and causation established.

Appellate Decision

On appeal, the Court of Appeal unanimously (McMurdo JA, Mullins P and Flanagan JA agreeing) ordered the appeal be allowed, the judgment for the first respondent against the appellants be set aside and that the first respondent’s claim be dismissed.

It was not in dispute that the appellants, as occupiers of the property, owed a duty of care to their guests, including the first respondent. The principal issue on appeal was the scope of that duty.

The Court found that the appellants were not liable, because they were not obliged to take such steps as were necessary to prevent the second respondent from harming another guest by deliberately setting fire to his clothing.

The general rule

As a starting point, McMurdo JA cited the general rule enunciated by Dixon J in Smith v Leurs² that “one man is under no duty of controlling another man to prevent his doing damage to a third” (the general rule).

McMurdo JA further cited Gleeson CJ in Modbury in support of the proposition that the general rule:

1. is based upon a fundamental principle that the common law does not ordinarily impose liability for omissions;³
2. is a principle based upon considerations of practicality and fairness;⁴ and
3. 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.5

McMurdo JA noted the trial judge had concluded exceptions to the general rule, namely situations where there exists a capacity to control the actions of third parties, or the creation of a special danger, were applicable to the facts of the matter, and addressed each in turn.

Duty to control another’s actions

McMurdo JA observed that one of the exceptions the general rule includes a situation where the defendant has the capacity to control the actions of the third party which results in injury or damage.

However, McMurdo JA clarified that it was not part of the pleaded case that the appellants controlled, or were bound to control, the conduct of their guests, or at least to take reasonable steps to do so. Furthermore, in final submissions before the trial judge, counsel for the first respondent submitted the appellants had capacity to control the use of the fuel at the property by what the appellants did with the fuel, rather than any personal control over the actions of the second respondent.

McMurdo JA noted the trial judge rejected one of the pleaded claims of negligence that the appellants failed to manage or supervise the part of the carpark where guests were sleeping, due to a lack of particularity. However, the trial judge later treated this as a fact and was ‘one of the foundations for the imposition of a duty of care which distinguished the case from Modbury’.

McMurdo JA found the trial judge erred by characterising an allegation of the pleaded case as one alleging the appellants failed to control the presence on the property of the irrational and intoxicated guests by supervising those guests that were acting in an unacceptable manner. McMurdo JA noted no finding was sought by the first respondent to the effect the appellants had the capacity to control the behaviour of the unruly guests and, accordingly, ‘it cannot be said that a capacity to control their guests was the basis of liability in this case.’

Duty involving special danger

Again, quoting Dixon J in Smith v Leurs, McMurdo JA noted a further exception to the general rule included a duty in reference to things involving a special danger.⁶ His Honour considered this was the principal manner in which the trial judge found an exception to the general rule, in that the appellants had ‘introduced fuel from a remote location to the party area where there was always a prospect that an intoxicated person may start a fire’.

McMurdo JA cited Lord Goff’s comments in Smith v Littlewoods Organisation Ltd⁷ in regards to the special danger exception, wherein it was stated ‘this may occur where the defender negligently causes or permits to be created a source of danger, and it is reasonably foreseeable that third parties may interfere with it and, sparking off the danger, thereby cause damage to persons in the position of the pursuer’.

Although questioning whether the risk which materialised was foreseeable, McMurdo JA noted the foreseeability of a risk was not the determinant of whether the general rule had been displaced. As noted from the passage above, the issue of foreseeability only becomes an issue in the event the defendant negligently causes or permits the special danger to be created in the first place.

In finding that the trial judge erred on this issue, McMurdo JA again cited Lord Goff, noting:

‘Moreover, it is not to be forgotten that, in ordinary households in this country, there are nowadays many things which might be described as possible sources of fire if interfered with by third parties, ranging from matches and firelighters to electric irons and gas cookers and even oil-fired central heating systems. These are commonplaces of modern life; and it would be quite wrong if householders were to be held liable in negligence for acting in a socially acceptable manner. No doubt the question whether liability should be imposed on defenders in a case where a source of danger on his land has been sparked off by the deliberate wrongdoing of a third party is a question to be decided on the facts of each case and it would, I think, be wrong for your Lordships’ House to anticipate the manner in which the law may develop: but I cannot help thinking that cases where liability will be so imposed are likely to be very rare’.⁸

McMurdo JA noted keeping fuel in a shed on a rural farm property was an ordinary and unremarkable practice, and 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’.

We understand the appellants had also appealed on a number of other grounds, including whether the trial judge had correctly identified the risk of harm, however given the Court of Appeal’s determination in respect of the primary issue as to the scope of the appellants’ duty, those issues were not addressed in the judgment.

Key Takeaways

Whilst the facts of this claim are quite unique, and unlikely to be encountered regularly, the decision of the Court of Appeal to overturn the trial judge’s decision is nevertheless an important one. The trial judge essentially adopted foreseeability of injury as the main criteria in assessing whether an occupier’s actions in creating a source of danger, gives rise to an exception to the general rule in circumstances where a third party causes injury or damage with that source of danger. Left unchecked, such an approach would have opened up an infinite number of factual scenarios which could lead to a finding of negligence.

The Court of Appeal decision dispels any suggestion of such an expansion and, rather, confirms both the general rule in relation to the duty to control another’s actions, as well as the circumstances in which that rule can be displaced. 

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Peter Dovolil

Position

Partner

Phone

+61 (0) 7 3000 8323

Email

pdovolil@carternewell.com

James Mullins

Position

Solicitor

Phone

+61 (0) 7 3000 8427

Email

jmullins@carternewell.com