…foreseeable risk – identification of risk – house party – plaintiff set alight by intoxicated partygoers
In February 2019, the plaintiff attended a birthday party at the homestead on the defendant’s property.
At dusk, the electricity supply to the homestead failed and in response, one of the defendants, Mr Ryan, drove his utility vehicle from the homestead and over to the fuel store, which was a five-minute drive away, to collect a generator.
Mr Ryan brought the generator and three jerry cans full of fuel back to the homestead, filled the generator with fuel and left the portion of unused fuel in a jerry can.
Sometime around 11pm, a grassfire was started by an intoxicated partygoer and was ultimately extinguished by Mr Ryan. Adjacent to where the fire was lit, Mr Ryan observed one of the jerry cans and he instructed his son to “put it in the shed”.
Sometime after midnight, the plaintiff retired from the party and went to sleep in a swag. In a prank which went terribly wrong, a partygoer by the name of Robert Taylor alongside a group of other young men, located the jerry can, tipped some fuel on to the plaintiff and set fire to him. The plaintiff suffered serious burn injuries requiring extensive skin grafts.
Crow J, decision delivered 2 June 2022
- Judgment for the plaintiff against the defendant for the sum of $600,797.55
- Judgment for the defendant against the third party in the sum of $420,558.29.
Citing the plurality in Tapp,1 his Honour concluded that the correct identification of the relevant risk in the present case was the risk of suffering a burn injury from an uncontrolled fire lit by an intoxicated guest from petrol made available by the defendants.
His Honour found that the risk was foreseeable against a background of there being a hundred or so young and intoxicated adults at the party as well as there being another deliberately lit grass fire only hours before the plaintiff was injured.
Further, his Honour considered that ordinarily, the sheer stupidity of lighting a fire at a party would be sufficient to categorise the probability or risk of occurrence as being low, perhaps even to the level of being insignificant. However, the first grassfire had changed things, as it had demonstrated that the level of intoxication of some of the guests had led to reckless behaviour.
It was considered that the defendants caused the source of danger by introducing the fuel source. In light of the high level of intoxication and irrationality of the young persons at the party, it was further considered foreseeable that one of those intoxicated persons may interfere with it and “spark off danger”.
His Honour held that the defendants had breached the duty owed to the plaintiff as they had failed to control the continued presence upon the property of expected irrational and intoxicated guests by supervising those guests that were acting in an unacceptable or unruly manner.
The scope of liability was contentious. In particular, the defendants alleged that “the scope of liability [does not] extend to the harm so caused because the harm was occasioned by the intentional, criminal or entirely reckless act of Robert Taylor, who is a third party that the defendants had no control over”.
Despite it being accepted that Mr Taylor’s conduct was criminal in nature, his Honour considered that absent the fuel, it is likely that there would have been no injury sustained by the plaintiff.
Further, it was considered that, as the reckless behaviour of lighting a fire had already been experienced earlier in the evening, and with the continued provision of large amounts of alcohol by the defendants, there was no reason to conclude that such a similar dangerous prank would not be further attempted by an intoxicated person.
His Honour concluded that the fuel source could have been removed easily, and ought to have been removed after the first grassfire, at the very least.
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1 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited  HCA 11.