…third party assault – burn injury
The plaintiff was a guest to a house party held on a farm.
The occupiers of the farm, who were also the ones hosting the party, had stored fuel at the premises in a shed for use in a generator. This was to provide electricity for the party, which during the night had also been used by intoxicated guests to set a grass fire.
After the grass fire the plaintiff went to sleep in a swag outside. Another guest then entered the shed and located the fuel, poured the fuel onto the plaintiff and set him on fire, causing him to sustain burn injuries.
The plaintiff sued the occupiers for negligence.
At first instance the plaintiff was successful at trial against the occupiers. The trial judge held that the defendant occupiers owed the plaintiff a duty of care to protect him from the reckless behaviour of intoxicated party guests against an uncontrolled fire, as:
(a) the defendants had created a special danger by storing the fuel in the shed, in circumstances where there had already been an improper use of the fuel earlier in the night, i.e. the grass fire
(b) the defendants were negligent by omitting to remove the fuel from potential access by guests following the grass fire.
The occupier defendants appealed the finding of negligence against them.
Decision
The appeal was upheld and the plaintiff’s claim was dismissed.
Ratio
It is the ordinary common law rule that there is no duty to prevent a third party from harming another, by criminal conduct or otherwise, unless there exists:
(i) a special relationship imposing on a defendant an element of control over the third party
(ii) a special relationship where the defendant facilitates the harm done by third party, or
(iii) the defendant, by their actions, creates a special danger – which, if any, would then give rise to a duty of care being owed to the victim by the defendant. This is so regardless of how foreseeable such harm may be to the victim if the defender does not take steps to prevent it.
In this case, the Court of Appeal disagreed with the trial judge that leaving fuel at the premises created a special danger. They said a fire could be created by a guest in many ways, and keeping small quantities of fuel at a premises was commonplace in ordinary households.
They went on to say that, if occupiers were found to be under a legal duty to take steps to prevent harm to another by a third party (from the misuse of things kept in an ordinary way on their properties), the burden would be intolerable.
Further, based on considerations of practicality and fairness, the common law does not ordinarily impose liability for omissions. It was merely an omission by the occupiers to not take the fuel away following the grass fire, which the trial judge found was the basis of their negligence.
Therefore, the general common law rule was not displaced and responsibility for the assault lied solely against the third party, not the occupiers.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, James Leggo, is a Senior Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.
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