…no duty to prevent a third party from harming another by their deliberate wrongdoing
On 9 February 2019, Mr Charles Dearden (the plaintiff) attend a 21st birthday hosted by Mr Terence Bernard Ryan and Nicole Therese Ryan (the defendants) for their son.
Mr and Mrs Ryan were the occupiers of the property where the party was held.1
Later that evening, Mr Dearden suffered serious burns after another party guest, Mr Robert Andrew Taylor (third party), deliberately poured petrol over Mr Dearden and then set him alight using a cigarette lighter.2
In the trial division (Supreme Court at Rockhampton),3 Crow J found Mr and Mrs Ryan to be liable for the harm done to Mr Dearden as they were the occupiers of the property and they had duty to the party attendees to avoid the risk of an uncontrolled fire by removing the jerry can of petrol so that it could not be found or used to start a fire.4
Mr and Mrs Ryan appealed the decision of the trial division to the Queensland Court of Appeal.
Decision
In the Queensland Court of Appeal, it was unanimously held that Mr and Mrs Ryan were not liable for the harm down to Mr Dearden when Mr Taylor deliberately set his clothes on fire.
Ratio
In his decision, McMurdo JA referred to relevant case law to support the general rule that there is no duty to prevent a third party from harming another by their deliberate wrongdoing (noting exceptions of special relations and special danger).5
McMurdo JA made clear that this general rule was not displaced even where the harm was reasonably foreseeable.
In addition, McMurdo JA commented that the nature of the conduct of the third party (that is, whether the conduct was deliberate or not) was a relevant consideration in assessing an occupier’s liability.
To support this proposition, McMurdo JA referred to the case of Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd where Lord Hoffman found that “an employer owes a duty not to leave a drum filled with highly inflammable vapour in a place where it could be accidentally ignited, but not a duty to take precautions against an arsonist workman igniting it deliberately”.6
Finally, drawing on the reasoning of Gleeson CJ in Modbury7 that this general rule “is founded upon considerations of practicality and fairness”,McMudro JA found that it would create an intolerable burden on occupiers if they were subject to 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”.
Accordingly, McMurdo JA found that Mr and Mrs Ryan were not subject to a duty to prevent party-guests from harming others by their deliberate wrongdoing, and they were not obliged to take steps to prevent Mr Taylor from deliberately setting fire to another’s clothing.8
Georgia Atcheson is a Solicitor at McInnes Wilson Lawyers.
Footnotes
1 Ryan v Dearden [2023] QCA 20, [2].
2 Ibid.
3 qlsproctor.com.au/2022/06/public-liability-standard-of-care-scope-of-duty-of-care
4 Ryan v Dearden [2023] QCA 20, [3].
5 Ryan v Dearden [2023] QCA 20, [17] – [28] citing Smith v Leurs (1945) 70 CLR 256, Smith v Littlewoods Organisation Ltd [1987] AC 241, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 (Modbury), and Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.
6 Ryan v Dearden [2023] QCA 20, 28] discussing Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.
7 n4, Modbury.
8 Ryan v Dearden [2023] QCA 20, [35] – [36].
Share this article