Plaintiff Seeks Damages Against Defendants for Serious Injuries

Dearden v Ryan & Anor [2022] QSC 111 (2 June 2022)

The plaintiff was set alight by the third party using a fuel source whilst on the property.  The plaintiff suffered serious injuries as a result of being set alight.  The plaintiff alleges the defendants owed a duty of care to the plaintiff to protect him from being set alight whilst on their property.  The Court, in making its final orders, assessed damages pursuant to the Civil Liability Act 2003 (Qld).

Facts:

The plaintiff, Charles Dearden, is currently 24 years of age, having been born on 5 August 1997.  Mr Dearden was invited to the 21^st birthday party of his friend, Daniel Ryan, to be conducted on Saturday 9 February 2019 at the defendant’s property, “The Three Mile”.  The homestead on The Three Mile is located on a house block with adjacent sheds and water tanks.  There is a work shed a short distance from the homestead; drone footage of the property shows that the work shed may be used to store a harvester and other rural equipment.

The majority of the agricultural plant and equipment and the entire fuel store, however, were kept at work sheds on an adjacent property, located approximately 5 minutes drive from the homestead.  Mr Ryan explained that the fuel stays at the work location on the other property as that is where the refuelling occurs.  Mr Ryan explained that the shed adjacent to the homestead did not store petrol.  Mrs Nicole Ryan said that if fuel for the mower was requested “it would be brought down then taken back, as a rule”, so that fuel was “always kept 5 km away at the hub”.

The defendant, Mrs Nicole Ryan, explained how she organised the 21^st birthday for her youngest son, Daniel Ryan.  Mrs Ryan was careful to take steps to ensure no one that attended the party would drive home after the party while affected by alcohol.  Mrs Ryan did this by inviting guests to stay overnight, arranging for a separate and safe area for party-goers to camp out.  On the evening of the party, one young guest informed Mrs. Ryan that he was going to drive away from the party.

Mrs Ryan ensured that guest had not been drinking alcohol and offered him the breathalyser.  Mrs Ryan also had a fire blanket and fire extinguisher in the house and knowledge that there was no petrol or other fuel anywhere near the party.  The third-party, Robert Taylor, boarded at secondary school with the plaintiff, Charles Dearden.  Mr Taylor’s recollection is that there might have been 10 young men standing around attempting to wake Mr Dearden.  Mr Taylor’s version is that someone handed him a lighter and then “I kind of dribbled fuel on his lower shirt, high jeans area and his – say his hip area and then ignited it ... with the lighter”.  Mr. Dearden was then on fire.

Matthew Ryan and Mr Terrence Ryan moved the remaining jerry cans. In respect of the large jerry cans which held a large amount of fuel, Mr Ryan deposed that he moved them “because of the concern the petrol might be used from those jerry cans”.

Issues:

I. Whether or not the scope of the defendants' duty of care extended to protecting the plaintiff from being set alight.

II. Whether or not the defendants breached that duty of care by not adequately storing the fuel source.

Applicable law:

Civil Liability Act 2003 (Qld), s 9 - provides that a person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

Civil Liability Act 2003 (Qld), s 11 - provides that a decision that a breach of duty caused particular harm comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the harm ("factual causation" );

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ("scope of liability" ).

Civil Liability Act 2003 (Qld), s 57 - provides that when assessing an amount of damages as a lump sum for a future loss or gratuitous services, the amount must be the present value, calculated using the prescribed discount rate, of the future loss or gratuitous services. 

Civil Liability Act 2003 (Qld), s 59 - provides that damages for gratuitous services provided to an injured person are not to be awarded unless—

(a) the services are necessary; and

(b) the need for the services arises solely out of the injury in relation to which damages are awarded; and

(c) the services are provided, or are to be provided—

(i) for at least 6 hours per week; and

(ii) for at least 6 months.

Civil Proceedings Act 2011 (Qld), s 61 - applies to an award of damages for deprivation or impairment of earning capacity, or for a liability to incur expenditure in the future.

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 - provides that it is important to recognise, however, that the duty alleged in Modbury was said to be founded only on the defendant’s position as occupier of the land controlling the physical state of the land (there the level of its illumination). 

Allwood v Wilson & Anor [2011] QSC 180 - the approach herein was considered as the correct approach in assessing injuries under the Civil Liability Regulations 2014 (Qld). 

Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16 - held that in Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings.  

Menz v Wagga-Wagga Show Society Inc [2020] NSWCA 65; (2020) 103 NSWLR 103 - Leeming JA with whom Payne JA and White JA agreed, addressed the issue of the degree of specificity (or intensity) which attends to the proper definition of the identification of the risk of harm. 

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 - provides that 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 of such harm is foreseeable. 

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 - emphasised the importance of the first step of accurately identifying the risk of harm.

S v S, unreported, NSWCA 17 July 1998 - provides that in general, social hosts do not owe duties to social guests.

Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241 - provides that there are special circumstances in which a defender may be held responsible in law for injuries suffered by the pursuer through a third party's deliberate wrongdoing is not in doubt. 

Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 - provides that the general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.

Russell v Edwards & Anor [2006] NSWCA 19 - provides that s 50(2) of the Civil Liability Act 2002 (NSW) limits recovery to an intoxicated plaintiff, where the plaintiff fails to satisfy the court that the injury would likely have occurred if the person had not been intoxicated. 

Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329 - provides that in applying the relevant provisions, the risk of injury must be identified so as to encompass the risk which is claimed to have materialised and caused the damage of which the plaintiff complains. 

Wynn v New South Wales Insurance Ministerial Corp [1995] HCA 53; (1995) 184 CLR 485 - provides that there are both positive and negative vicissitudes in assessing loss of economic capacity. 

Analysis:

In order that a defendant be held to be 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.  The defendants knew of the risk of a guest suffering a burn injury from an uncontrolled fire by the experience but a few hours previously of the grass fire. There were over a hundred young adults at the party, some were highly intoxicated. 

The appellant, in this case, did not control what happened to the first respondent.  It is not enough to say that the appellant had power to act in a way that may have made the occurrence less likely (by leaving the lights on).  The conduct which caused the first respondent's injuries was deliberate criminal wrongdoing.  By its very nature that conduct is unpredictable and irrational.  It occurs despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught.

Duty of care in the present case is not founded solely upon the defendants’ position as occupier of the property The Three Mile.  The harm to which the various Liquor Acts in Australia are directed, to minimise anti-social conduct both on and off licenced premises associated with the consumption of alcohol, is enlivened upon the facts in the present case.  The guests, many of whom were young men, were supplied with essentially an unlimited amount of alcohol. It was expected that many would become intoxicated and therefore act irrationally.  The defendants, with a large number of intoxicated persons, introduced fuel from a remote location to the party area where there was always a prospect that an intoxicated irrational person may start a fire.

Conclusion:

Judgment is made for the Plaintiff against the Defendant for the sum of $600,797.55.  Judgment is made for the Defendant against the Third Party in the sum of $420,558.29.