Bourke v Parissis

[2005] HCATrans 673

[2005] HCATrans 673

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S512 of 2004

B e t w e e n -

JORDANA RACHEL BOURKE

Applicant

and

ANTONIOS PARISSIS

First Respondent

EVELYN PARISSIS

Second Respondent

FIONA JENNY MADIAS

Third Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 12.00 NOON

Copyright in the High Court of Australia

__________________

MR D.E. BARAN:  May it please, your Honours, I appear for the applicant.  (instructed by Keddies Litigation Lawyers)

MR B.J. GROSS, QC:   May it please the Court, I appear with MR H.W.H. BAUER, for the respondents.  (instructed by McMahons National Lawyers)

HAYNE J:   Yes, Mr Baran.

MR BARAN:   Your Honours, the application for special leave raises a number of issues of tort law which require re-examination by your Honour’s Court.  They include non-delegable duties of care, special relationships and the ordinary duty of care owed by an occupier to an entrant when there may or may not be criminal behaviour on the premises, which is an important point to raise, if I can just start.

Section 54 of the Crimes Act was raised by Justice Bryson in the Court of Appeal in this case.  That was a matter which was never raised at trial.  The criminal behaviour put against the young man who lit the barbecue by splashing methylated spirits on the barbecue is said to have been a criminal act, or a quasi criminal act.  That is a matter which is greatly affected by the fact that the man was grossly intoxicated.  This was a case where we say there was a special relationship involved and a special duty because it was the mother, who is the second respondent, of the young man who orchestrated the barbecue who stipulated in no uncertain terms what alcohol could be consumed at the barbecue, which was light beer and light beer only.

There are findings of fact made by the trial judge as to when that lady left and when she came back with her sister, both of whom are owners and occupiers.  At the end of the day the ultimate finding is, by the trial judge at least, that when they came back, the plaintiff’s evidence is preferred, that is that all the guests, or the majority of the guests, were grossly intoxicated.  However grossly intoxicated, we say there is nothing in principle to suggest that there is anything wrong or against principle or policy for the occupier of the premises to take some reasonable steps.

CALLINAN J:   What should she have done?  Employed a group of security guards for the night?

MR BARAN:   No, your Honour.  What she ought to have done was to have said the two things that we said in the Court of Appeal, either (a) to exercise some supervision or, (b) told the guests to leave.  Had that occurred, we say on the balance of probability so far as causation is concerned, the acts would not have occurred.  That was put before the trial judge and accepted, and it was put before the Court of Appeal and rejected.

The special leave point, we say, is the fact that the idea of a non‑delegable duty of care involving grown adults, as opposed to young adults, is a matter that has not been looked at by the High Court before.  The law of social hosts and the law of social responsibility in terms of recreational gatherings at a residential set of premises is something that occurs in Australian homes on a very frequent basis.  The special leave important point is that it affects certainly public liability insurers and occupiers’ liability insurers and also affects persons who are young adults who come to a party like this.

The other issue in this case which we say is of importance for the purpose of special leave is the concept of an adult at common law, as opposed to the concept of ‑ ‑ ‑

HAYNE J:   Sorry, is the concept of?

MR BARAN:   Of an adult at common law, because in this case the classification of the persons at the party were referred to as young adults.  The Court of Appeal was effectively saying that once the person is an adult, ie, over 18, there is no further duty to supervise.  That arises out of Justice Tobias’ reasons and Justice Bryson’s reasons, with whom the President agreed.

In those set of circumstances, in my respectful submission, it is a matter that has to be looked at by the High Court because it is one thing to have an 18‑year‑old adult who can go into a particular set of premises, for example, a pub, where there are very stringent laws regarding supervision, security, service of alcohol and responsible service of alcohol.  It is another thing to say that an 18 year-old who goes to a party where, left unsupervised, gets grossly intoxicated, he is left in a similar position than not because in a recreational situation or a residential situation you do not have any of those liquor licensing laws which effectively protect the youngster.

That is very difficult - a person who is say in their 30s or 40s who is going to a particular event would be behaving in a particular way.  We do not suggest from this side of the Bar table there would be any supervision for someone say in their 40s, but if someone who is 17 years of age, like my client, and is catastrophically burned in circumstances where all that had to be done was there to have been a reasonable response by the very person stipulating how the party should proceed, ie, to come back and supervise or to come back and tell the guests to leave, is a reasonable response which does not incur a burden upon the owner of the residential premises.

More importantly, your Honours, is the observation made by Mr Justice Bryson at page 57 of the application book at line 25, where his Honour said:

Barbecue parties with liquor attended by young adults occur in their hundreds all over Australia every evening; the perception that the activity, supervised or unsupervised by older adults, is one involving a foreseeable risk of personal injury is, in my opinion, an entirely wrong perception.

Now, at the heart of this appeal is the very fact that if you leave 18‑year‑olds, 19‑year‑olds at a set of premises drinking hard liquor – and the finding is at first instance that when the mother and the aunt left – one person who gave evidence, Mr Karas, who was the person who splashed the methylated spirits on the barbecue, he had bought hard liquor at that time.  The plaintiff said that at the time when she arrived there was hard liquor, and it was in tubs.  They are both accepted.  They are accepted over the other witnesses.

Now, at that point in time, that is when the second respondent should have said, “Well, that’s it.  I have made a stipulation.  It was light beer and light beer only.”  Now, she simply just goes off to the movies, comes back later on at night and, despite the fact the plaintiff gives evidence and it is accepted that everyone is intoxicated, does nothing about it.

Now, we say, with respect, that there is nothing unreasonable about imposing a duty of care upon a person to take some response and take some steps in respect of that particular matter.  Had that been done there would not have been the injury.  It is no answer, we say, as Justice Bryson says, that because other members of the party who were also drunk and were telling this gentleman to stop splashing methylated spirits on the barbecue, because they said to stop and he did not stop, it would have been the same outcome if the mother would have come out and said to stop.  It is an unbelievable proposition, we respectfully submit, because she comes out and she is the owner and she is the mother and she is the person in control.

CALLINAN J:   So parents are always taken more notice of than youths’ peers.  Is that the point?

MR BARAN:   That is the point, your Honour.  Not always, but in this ‑ ‑ ‑

CALLINAN J:   Well, there is a bit of evidence against that, apparently.

MR BARAN:   But the fact is that if you are completely drunk and you are saying, “Stop it, stop it”, effectively you are urging it on, but the mother comes out, at least it would have been a deterrent that would have had some effect.  Again, on a matter of probabilities we say the probabilities would favour the fact that our client would not have been involved in what was a catastrophic accident.  She was very severely burned, and there is no issue about her damages and the fact that she was so badly injured.  The real issue, however, is non-delegable duties of care in respect of young adults.

We say there is a non-delegable duty of care because of the very fact that the mother exercised the control.  She is standing there at the barbecue before she leaves, she is within a metre of the methylated spirits bottle, and also she does not care about how the young boy, who has never lit a barbecue before – and it is a Weber barbecue involving the use of an accelerant, not the use of gas – she does not care what happens in respect of how he goes to light the barbecue.  She does not make any inquiries with the father.  The father, at the actual date in question, was not involved.  The son is just left to his own devices in respect of this.

Now, there is nothing unreasonable or burdensome about imposing upon a responsible adult some measures to ensure that a person, who is a susceptible person such as a 17‑year‑old girl, has at least some protection in the fact that where the parent stipulates what happens at the party that there are some responses that are made.  Again, we say in terms of causation it favours the plaintiff.

Northern Sandblasting, Jones v Bartlett and all of those cases only deal with the landlord and tenant side of matters.  This is dealing right with the very heart of what is involved now in terms of public liability and what has been referred to as the public liability crisis, insurance crisis and the like, some standard from the High Court – a principle from the High Court regarding householders and social hosts, as we referred to in the Court of Appeal, from the cases in Canada regarding this particular area, has to be addressed by the High Court even though it is difficult, and it is a difficult area because of the very matter that was just raised by Justice Callinan.

But the fact is just because it is very difficult it does not mean the High Court should shy away from this.  The responsibility of a parent or person who does have some control over young adults, and we emphasise

young adults, is a matter where there ought to be some intervention now by the High Court in terms of appropriate principle to be applied.

For all of those very important reasons, including the fact that it is going to affect almost every householder who has young children or has young people come to their house, and public liability insurers who have to either respond to these claims or who have to oppose them, in my respectful submission, it is a proper and appropriate vehicle for special leave to be granted.

HAYNE J:   Yes, thank you, Mr Baran.  We need not trouble you, Mr Gross.

In our opinion an appeal would enjoy no prospect of success.  That being so, special leave to appeal is refused and refused with costs.

AT 12.10 PM THE MATTER WAS CONCLUDED