Chadley Winston Tocker v Denise Kathleen Moran
[2012] NSWDC 248
•14 December 2012
District Court
New South Wales
Medium Neutral Citation: Chadley Winston Tocker v Denise Kathleen Moran [2012] NSWDC 248 Hearing dates: 27/11/12 to 30/11/12 Decision date: 14 December 2012 Before: Mahony SC DCJ Decision: Verdict for the Defendant
Catchwords: Personal injury, Intoxication Legislation Cited: Civil Liability Act 2002 Cases Cited: Wyong Shire Council v Shirt (1980) 146 CLR 40
Parissis v Bourke [2004] NSW CA 373
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330
Amanda's On The Edge Pty Limited v Dries [2011] NSW CA 358
Langendoen v Coolangatta Estate Pty Limited [2012] NSW DC 210
Davies v George Thomas Hotels Pty Limited [2010] NSW DC 55
Russell v Edwards & Anor [2006] NSW CA 19Category: Principal judgment Parties: Chadley Winston Tocker - Plaintiff
Denise Kathleen Moran - DefendantRepresentation: M H Best - Plaintiff
B Hull - Defendant
Carroll & O'Dea Lawyers - Plaintiff
Hicksons Lawyers - Defendant
File Number(s): 11/265106 Publication restriction: Nil
Judgment
The Plaintiff's Claim
The plaintiff was born on 4 November 1989 and claims damages for personal injuries suffered by him on 26 September 2008 on the defendant's premises at 11 Cooma Street, Abermain. At the time of his injuries the plaintiff was 19 years of age.
The plaintiff's claim is brought in negligence. On the evening of 26 September 2008 he was attending an 18th birthday party at the defendant's premises. In the backyard was constructed a bonfire which was lit early in the evening. At approximately 11.30pm the plaintiff fell into the fire and sustained very severe injuries, particularly to his left hand and forearm.
The defendant denies liability, that is breach of duty of care and causation. The defendant further raises a defence of intoxication pursuant to s 50 of the Civil Liability Act 2002. ("CLA").
The Circumstances of the Plaintiff's Injury
The plaintiff was attending the 18th birthday party of Hayden Granger. There was a dispute between the parties as to the number of people in attendance, however, it was less than 15. Not all were called to give evidence, however, of those who did give evidence, only the plaintiff and Katie Johnson gave evidence of the actual circumstances of the plaintiff's fall. I will summarise the evidence below.
The plaintiff gave evidence that he had purchased a four pack of cans of Jack Daniel's bourbon, being a pre-mix with Coke, together with a small bottle of Jack Daniels to give to Hayden Granger. He arrived at the premises at 7.30pm and gave two of the four cans of Jack Daniels and Coke away to his friend Daniel Colyer. The plaintiff gave evidence that the fire at the beginning of the evening was no bigger than a small average tyre around its perimeter. Over the evening it became at least three times bigger than it was at the beginning as wood was piled onto it. Exhibit C was a diagram taken from the report of Mr Cockbain, an expert qualified on behalf of the plaintiff. On that diagram the plaintiff made various markings indicating the location of the fire, the presence of logs placed around the fire for the purpose of seating, the placement of various sticks on the property and where he fell.
At approximately 11.30pm the plaintiff stated that he moved towards the fire with the intention of sitting down at the logs around it. As he did so, he tripped on a hole in the ground and fell forward. He said:
"A: I got tripped and I fell forward and as I fell forward, my instinct fully put my arms forward to protect my face then one of my hands, the left-hand one, lunged into the amber of the fire." (sic)
The plaintiff had previously described that he had observed during the evening holes in the ground in the backyard like "slight dug-out", or "a groove a few inches deep". He saw many of these holes and it was one of those holes that he had described that he tripped on.
The plaintiff was cross-examined on the history he had given Mr Cockbain as to the dimensions of the fire and the holes in the backyard. For example, Mr Cockbain had reported that the fire comprised a dug-out hole approximately 1.5 metres deep filled with wood, which the plaintiff conceded was in fact 30 metres deep. His explanation for saying that it was 1.5 metres deep was that he was not very good with measurements. The plaintiff also gave evidence that the grass in the backyard was a bit above the length of his hand, meaning 6 inches or even higher. When it was suggested to him that the grass had been mowed that day he disagreed with the proposition that there was no grass anywhere in the backyard 6 inches in length.
The plaintiff gave evidence that the hole that he tripped on was "probably about the size of a bowl", that is 10-15 centimetres deep or a bit less. He was cross-examined on a question asked by way of particulars in which he was asked to describe precisely the depth of the hole or depression, which his solicitor had answered on his behalf with "estimate of 30 centimetres". The plaintiff conceded that was wrong. He said that at 22 years of age he did not know how deep 30 centimetres was.
The plaintiff conceded that he gave a history to Mr Cockbain that just prior to the fall he had been dancing near the clothesline which he identified on Exhibit C as being between the stairs to the backyard and the fire.
The plaintiff gave evidence that after the incident he was taken to hospital by Dean Hehir, who drove the vehicle and that the defendant went in the car with him. Dean Hehir was not called to give evidence. It was put to the plaintiff that at the time he was driven to hospital he was extremely intoxicated and that for the half hour or so leading up to his accident when he fell into the fire, he was also extremely intoxicated. He denied both propositions.
In cross-examination it was also put to the plaintiff that during the evening Hayden Granger had told him "to move away from the fire", with which the plaintiff disagreed.
It was put to the plaintiff that before he fell into the fire he was dancing and singing next to the fire and that he was in fact stumbling, and that what caused him to fall into the fire was that he tripped over his own feet. The plaintiff disagreed. It was also put to him that at that time the fire had died down to red hot coals which covered an area of about 2 metres in diameter. The plaintiff disagreed with that proposition.
The plaintiff called the following witnesses in his case. None of them gave evidence as to how he came to fall into the fire:
(1) Carol Olsen, the plaintiff's grandmother corroborated that she purchased the alcohol for the plaintiff. It comprised four cans of pre-mixed bourbon and coke, and a bottle which was a gift for Mr Granger. She observed him in the early hours of the 27 September 2008 at Cessnock Hospital and did not consider him to be intoxicated. However, she made no assessment of what he had drunk at the party. She also denied saying the following words to Judith Moran at the hospital:
"What's he done to himself now?"
(2) Daniel Colyer was a friend of the plaintiff who arrived separately at the party. He gave evidence that the grass in the backyard was long, and that he fell in a hole which he identified on Exhibit F. His evidence was that he had fallen into a hole a little bit away from the fire and twisted his ankle. He did not see the incident in which the plaintiff was injured but assisted him afterwards by placing his left arm in a bucket of water. In cross-examination Mr Colyer said that some holes in the backyard were six inches deep and some were deeper, about a foot deep. He said there were eight holes a foot deep and another five which were six inches deep. Further, the holes were located around the fire and they were in the grass and he tripped over one of them. Mr Colyer confirmed that it was not pitch black in the backyard. He disagreed with the proposition that the ground was generally level around the fire with no noticeable holes or depressions, and further disagreed that the plaintiff was extremely intoxicated.
(3) Michael Manderson was 15 years old at the time of the party. He said he was the only sober person at the party. Mr Manderson did not see the plaintiff fall into the fire but saw him getting up out of it. He helped him inside. He saw the whole of the plaintiff's body in the fire and denied that he was stumbling prior to the fall or that he tripped over his own feet.
(4) Joanne MacIntyre was the plaintiff's aunt. She saw him following his admission in the early hours of the next morning to John Hunter Hospital. She gave evidence that the plaintiff had told her as follows:
"He had fallen into the fire. He put his hands out to cover his face. A boy put his hand in a bucket. ... that had helped save his arm."
Mrs MacIntyre did not feel that the plaintiff was intoxicated when she saw him. She had never seen him intoxicated in the past, but conceded in cross-examination that she was not making any judgment as to his intoxication at the time.
The defendant called the following witnesses:
(1) Kathleen Moran, the defendant's daughter who did not stay at the party long and spent most of the night upstairs in the house.
(2) Judith Moran, the mother of the defendant, who gave evidence that the bonfire was built on sand with a flattened bed on a slight incline in the backyard. It was not in a pit. She stayed at the party for one hour and then retired to watch television in her room until 10.30pm. She was woken at 11.30pm after the plaintiff was injured. She observed the plaintiff to be unsteady on his feet and could smell alcohol. She gave evidence that she drove the plaintiff to Cessnock Hospital in her car with Cassandra Evans in the front seat. At the hospital the plaintiff rang his grandmother and when she arrived she said the words:
"What's he done now?",
to which Mrs Moran replied
"He's fallen at our place. He's in emergency."
Mrs Moran denied that there were divots, dog holes or holes six inches or one foot deep in the backyard. She gave evidence that the lawn had been mown one week before by her ex-husband, and in re-examination gave evidence that whilst the evening was reasonably dark, one could make out people in the backyard, although you could not make out faces.
(3) Katie Johnson, who gave evidence that when she arrived the fire was already burning. It was about a metre high and about one metre wide. She observed the plaintiff when he first arrived at the party and he was sober. During the course of the evening she gave evidence that the plaintiff was drinking and was getting a bit boisterous. When asked about her observations of the plaintiff during the evening she said:
"Well, up until then he was drinking as normal, but he started sort of playing around the fire, as it was. He was jumping over it and at one point he peed on it."
She described the plaintiff's behaviour as "sort of degrading a bit" and when asked to explain what she meant, said:
"Well, he wasn't very well footed, as it was, because when he was running around and singing and dancing his footing was getting a bit off, as it was."
Prior to his fall, she observed the plaintiff to be running around the fire and singing. She then said:
"And then, as he was singing and that, he got close to the fire as he was doing the round and then he tripped over his own feet into it."
When asked how big the fire was at the time when the plaintiff fell into it she said:
"It didn't have much flames left. It was nearly down to its coals."
In cross-examination Katie Johnson conceded that she had been drinking that night. Prior to the plaintiff's fall she observed him to be running in a circle around the fire, then running back and forth and as he went to do a second circle of the fire, he fell. The fire was a little less than one metre wide at that time.
Katie Johnson disagreed with the proposition that Dean Hehir drove his car to the hospital with the plaintiff in the car.
She was cross-examined also on the evidence she gave as to the consumption by the plaintiff of alcohol on that night, and conceded that she did not see him consume the contents of a drink from start to finish. She did observe the plaintiff to drink some of Hayden's alcohol because he had finished his. The plaintiff was 18 feet away from her when he fell and about two feet away from the fire when she saw him trip over his feet.
When asked whether there was an extremely limited amount of light emanating from the fire, Ms Johnson said:
"No there was enough light emanating from the fire to be able to walk around it and find your way back to the steps, into the garage."
When it was put to her that the area between the grass and fire was in darkness, she disagreed, saying that the area was well lit. She agreed that there was small divots in the backyard but not larger holes. She disagreed with the proposition that prior to his fall the plaintiff was in darkness and also that he placed his foot into a hole which was not observable by him because of the darkness and fell forward into the fire.
In re-examination Katie Johnson said that her eyes had adjusted as she had been outside for a fair while, and that the plaintiff had been outside for the same amount of time. She also stated that the grass had recently been mowed.
(4) Cassandra Evans was another guest at the party. She described the grass in the backyard as having just been mowed and when asked about her observations of the plaintiff at the party she said that it was her belief that he was drunk. She had observed him to be not steady on his feet throughout the night. She did not see him fall into the fire. In fact, Cassandra Evans was upstairs for most of the night. After the accident she said the plaintiff smelt a bit of alcohol. In cross-examination it became clear that Ms Evans spent the majority of the evening upstairs and not in the backyard of the premises. She did not observe the plaintiff to fall into the fire.
Ms Evans gave evidence that there were no potholes in the backyard between the steps and the fire and that the only depressions in the ground were where their feet had been or people had been walking. She had no recollection of going to the Cessnock Hospital with the plaintiff in Judith Moran's car. She had assumed that the plaintiff was drinking alcohol because she had observed him to part of a group of boys who were drinking that night. In re-examination when asked whether there was anything about his behaviour that led her to confirm that that assumption was correct, she said:
"Well he couldn't stand straight, like he was wobbling and stuff, so that's where I got he was drunk from, consumed alcohol."
(5) Patricia Farthing also attended the party. During the course of the night she noticed the plaintiff "Slowly started staggering, slurring his words towards the end. He got a bit loud, he got very loud." She described his behaviour as "over the top", meaning "like very loud and obnoxious like".
Ms Farthing had in fact spent most of the evening upstairs, not in the company of the plaintiff. She had observed his behaviour later in the evening through a downstairs bathroom window.
In cross-examination Ms Farthing gave evidence that during the evening the plaintiff had come with others from the backyard to the upstairs part of the house to watch a movie. It was there that she observed him "staggering and being rather loud and slurring his words". It was his behaviour in the tv room which led Ms Farthing to describe the plaintiff's behaviour as "obnoxious".
The following question was put to Ms Farthing in crossexamination:
"Q: The first time you saw Chad intoxicated was when he was upstairs in the tv room at about 10 o'clock. Is that right?
A: Yes."
That evidence was inconsistent with what she had earlier told an investigator, namely, that "Chad appeared intoxicated when he arrived at the party." Her evidence under oath was that he was not intoxicated at the time that he arrived at the party.
It was further put to Ms Farthing that the plaintiff had constantly blamed her for his accident because she had occupied Hayden at the time of the accident. She agreed, on the basis that subsequent to his injuries, the plaintiff had said to her:
"If - this is your fault, if you weren't occupying Hayden this wouldn't have happened."
She disagreed that she was trying to get back at the plaintiff for saying that he had blamed her, and said that she felt guilty rather than angry for hearing him say that.
In re-examination Ms Farthing adopted the following parts of her statement made to the investigator, namely:
"At 11pm, when he went back downstairs, Chad was extremely intoxicated."
"He was slurring his speech and having problems standing and walking."
"Others were trying to get him to sit down."
Ms Farthing also said it was true what she had told the investigator at paragraph 28:
"When I went downstairs Chad was very loud and obviously intoxicated, he was stumbling around."
(6) The defendant, Denise Kathleen Moran, gave evidence of the preparations made for the 18th birthday party. The fire was built where there had previously been a children's above ground swimming pool, and it was based on sand. As the backyard was sloped, the sand was built up to a height of 5cm so that it provided a level base. Prior to 25 September 2008, she had held five or maybe six bonfires on her property and had never had any trouble with people in relation to fires.
Hayden Granger was a friend of the defendant's daughter and had asked if he could hold his 18th birthday party in her backyard. The defendant was a member of the Rural Fire Service and described her backyard as being "average backyard lawn". The area was not totally grassed, however the grass she described as "very short" having been mown by her father the week before. In addition, the defendant took precautions by extending a hose up the side of the yard so that it could reach the bonfire and also placed a couple of fire extinguishers along the fence.
The defendant had little involvement in the party. She did not go into the backyard and went to bed at about 10 or 10.30pm. She had previously witnessed the bonfire being lit early in the evening.
In cross-examination the defendant said she had cleared the back lawn of sticks or branches the week before when her father had mowed the lawn. Further, Hayden Granger had mowed the back lawn the day of the party and she did not observe any sticks on the lawn. Between the retaining wall at the back of the house and the fire pit, she described the grass as being "the best. It's more patchy up the very back of the thing". She disagreed that the grass in patches was up to six inches high on the day of the party.
In respect of lighting, the defendant gave evidence that light emanated from the bedroom windows at the back of the house, and from the doorway to the garage on ground level. Whilst she agreed that the area in the backyard would be in relative darkness at night, she disagreed that one would not be able to see where one placed one's foot.
The defendant knew that the purpose of the bonfire was that it was to be lit for the party, and that there were no external lights in the backyard near the fire or illuminating the area around the fire.
Whilst she did not go outside to monitor the behaviour of people at the party, her evidence was that she told Hayden that it was his responsibility and that "the guys had to look after themselves". When put to her that there were depressions and/or holes in the backyard, she denied that there were holes, but agreed that there were slight depressions describing it as "just an average backyard". She conceded that she did not turn the back lawn into "a perfectly immaculate sort of area". However, she disagreed that there were holes in the backyard covered by grass that had grown that were not visible in the dark.
The defendant acknowledged that having a bonfire was potentially dangerous and she believed the major hazard was that the fire might spread, which is why she had taken precautions of having a hose and fire extinguishers present. It never occurred to her that somebody might get burnt in the fire. That had never happened before or since.
As to lighting, the defendant, when asked whether there was a chance that in the dark someone could trip and fall because they couldn't see where they were going, said:
"It wasn't really dark because of the bonfire, the bonfire was providing light."
Further, she had set up a halogen light to provide lighting in the backyard, however, Hayden and "the kids" did not want it.
The defendant described the condition of her backyard as being "no worse than walking down the street" and when it was put to her that she could have filled in the depressions in the backyard, she said:
"They're not that big a depression, it's like any public park, it's not a bowling green."
It was put to the defendant that she could have taken steps to smooth out the divots or depressions by filling them in with some soil or by levelling them off such that the depression or divot was flattened out, to which she replied:
"I didn't have anything to fill them with and I don't how you level out a depression."
The defendant disagreed with the proposition that there were holes in the backyard, some that were six inches deep. She in particular denied that there was any hole the depth of a bowl. Assuming a hole was there, she agreed that such a hole could be filled with soil.
In re-examination the defendant said that the halogen light was removed at the request of Hayden because it was too bright and it was shining sort of directly at them, like a spotlight. They also wanted it dark for the fire. She was not sure that it was Hayden who asked her to remove it, but she thought it was "the girls", referring to her daughter and her friends.
(7) Hayden Granger had asked Denise Moran if he could use her house and backyard to accommodate his birthday party. He had attended a bonfire, one or two every year, since he was 12 years of age, with his family and friends.
On the day of the party Mr Granger mowed and cleared away any leaf litter or sticks into a central area where he held the fire. He constructed a seat from two logs and a board placed across them. He mowed the grass to an inch to an inch and a half and described the ground between the house and the bonfire as having a couple of bumps here and there but nothing major. The bonfire was roughly a metre and a half in diameter with a metre to a metre and a half height with logs, sticks and branches and there was a patch of ground around it used as a fire break. He used a steel rake to rip up the grass and anything that could help the fire spread.
Mr Granger lit the fire and used some petrol from a jerry can kept by the defendant.
Mr Granger was not feeling well on the night of the party and therefore only drank a couple of rum and cokes and half a bottle of "Woodstock".
When asked whether he noticed anything about the plaintiff he said "he seemed in high spirits, he was having fun".
Whilst he could not remember seeing the plaintiff drinking, he described his behaviour as "more and more intoxicated as the night went on". When asked what he observed his answer was:
"He became giddy, and giggly at points, laughing. His mood went for the happier, and he just started stumbling a little bit before we went inside, and slurring - slight slurred in speech." (sic)
Mr Granger gave evidence that the party goers went inside at between 10 - 10.30pm to watch a movie and that as he was unwell, he nodded off. At the time they went upstairs the fire was low but there was still an open flame. He was upstairs when Dean Hehir rushed up to tell him that the plaintiff had fallen into the fire and he assisted the plaintiff with Dean Hehir into Judith Moran's car. In cross-examination Mr Granger agreed that the area between the house and the fire was mostly grass but that there were bare patches with some slight impressions in the backyard. He did not notice any hole six inches deep. He disagreed that the grass was as high as six inches tall. He did not remember one hole of approximately a small bowl size.
Mr Granger agreed that the only sources of light in the backyard were the fire and ambient light coming from lights within the downstairs bedrooms. He believed that there was another light source being a halogen light, but could not remember its source. His recollection was that the area between the house and the fire was fairly well lit and he recalled being able to see his feet. Finally, he agreed that as the backyard was on a slight incline with a couple of bumps, one would not be able to see those bumps in the dark.
Mr Granger did not give evidence at any time that he had told the plaintiff to move away from the fire, as was put to the plaintiff in cross-examination (see para 12 above).
Extraneous Matters
A number of irrelevant matters were the subject of evidence during the trial. They included the presence of sticks or piles of sticks on various parts of the property, whether there was more than one log around the fire upon which people could sit, and the presence of a bench seat adjacent to the back of the house upon which the plaintiff and Mr Manderson both gave evidence they sat on at some stage during the evening. Of some relevance was whether there was a light attached to the rear of the house, who drove the plaintiff to the hospital, and an incident earlier in the evening of which Mr Colyer gave evidence that he had himself stepped in a hole, in a part of the backyard removed from the fire, and twisted his ankle. I have disregarded the irrelevant matters, and given appropriate weight to the other matters.
Expert Evidence
The plaintiff relied on the report of Mr David Cockbain of Safety and Forensic Engineering Pty Limited dated 31 January 2012, which was admitted without objection. Mr Cockbain conducted a telephone interview with the plaintiff and inspected the site of the incident. He reported that the plaintiff observed an open fire had been constructed in the backyard of the premises in a hole which was approximately 1.5 metres in depth and which had been filled with timber. Further, the fire was situated approximately 7 metres from the rear of the house with the area dark and not illuminated by a single light or light fitting. The plaintiff informed him that he had not been to the property previously and that there was no illumination provided to enable him to traverse the steps and make his way to the fire. The area itself was illuminated only by the light provided by the flames from the fire. Further, the plaintiff advised him that the access steps to the yard at the rear of the premises were not illuminated and that the ground between the top of the access stairs, as well as the ground surrounding the fire was rough and uneven and contained some depressions.
Mr Cockbain reported that the plaintiff informed him that he had consumed some alcoholic drinks during the night, however, however he was not affected by alcohol. The mechanism of injury was described to him as follows:
"26. I understand that at approximately 11pm several people, including the plaintiff, had been dancing adjacent to the fire. At the completion of dancing the plaintiff walked toward the fire with the intention of sitting on one of the logs that were surrounding the fire when his right foot became entrapped in a hole/trench within the ground and as a consequence the plaintiff overbalanced and fell under the influence of gravitational energy, landing in the unprotected and open fire.
27. The plaintiff fell with both hands outstretched, landing in the fire and sustained injury to his hands, left arm and stomach."
On inspection of the property on 31 January 2012, Mr Cockbain described the area around the fire, which had been recently mown, and "the grassy area surrounding the fire was undulating and comprised a number of trip hazards to pedestrians".
Mr Cockbain did not go on to describe what those hazards comprised and why they amounted to trip hazards. Nor did he relate any of those hazards to holes of either six inches or one foot deep, or holes the size of a small bowl.
Mr Cockbain was of the opinion that it was foreseeable that a patron such as the plaintiff would suffer injury whilst utilising this section of the premises which he said contained "a hazard in the form of a hazardous height differential under the conditions as described". The plaintiff, he said, was let down by the failure of the defendant to provide "effective illumination of the area and to ensure the premises' backyard, an area under their control, was free of hazards".
In Mr Cockbain's opinion, the risk facing the plaintiff was easily preventable and the following reasonable preventative measures could have been implemented by the defendant:
"1. The use of a fit for purpose and relocatable steel type fire container at a cost of between $150 and $1400 (photograph figure 10).
2. The levelling of the pedestrian walking areas between the stairs and the fire pit and surrounding fire pit such that height differentials that pose a risk of injury to pedestrians were eliminated, at a cost estimated to be $100.
3. The installation of either a permanent or temporary external light to effectively illuminate both the access stairs and the area surrounding the fire pit as shown in the photograph figure 11, at the cost in the vicinity of $80.
The Plaintiff's Case on Liability
Sections 5B and 5C CLA set out the general principles to be applied in determining whether there has been breach of a relevant duty of care. The plaintiff submitted that the risk of harm referred to in s 5B (1) should be identified as follows:
(a) Harm which may have arisen by reason of the presence of the bonfire within the backyard.
(b) Harm which may have arisen by reason of the lack of proper lighting in the backyard; and
(c) Harm which may have arisen by reason of the uneven surface of the backyard or the divots, holes or depressions that were present in the backyard.
The second step required by s 5B (1)(a) is to determine whether the relevant risk of harm is foreseeable by applying the test laid out in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 46 per Mason CJ. The plaintiff submitted that it was clearly foreseeable that a person such as the plaintiff could suffer harm as a direct consequence of the three identified risks outlined above, and further, that such risks were not insignificant as required by s 5B (1)(b).
The plaintiff then submitted that the test in s 5B (1)(c) is satisfied, namely, whether a reasonable person in the defendant's position would have taken precautions against the risk of harm after an assessment of the criteria set out in s 5B (2).
The plaintiff submitted that it was the "coalescence of the factors surrounding the entrance of the plaintiff upon the defendant's premises, the presence of the bonfire, the lack of lighting in the area between the rear of the house and the bonfire, and the presence of trip hazards in the form of holes, divots, depressions (or as otherwise described in the evidence) meant that there was a real probability that the harm (in the broad sense of the definition) would occur if care were not taken. Whilst ordinarily the presence of holes, divots, depressions etc in the backyard may not require reasonable precaution to be taken, the lack of lighting in the backyard in combination with their existence required reasonable precautions to be taken in respect of them". This reflected the pleading in paragraph 12 (a), (b) and (c) of the Plaintiff's Statement of Claim.
The plaintiff submitted that the burden of taking the precautions to avoid the risk of harm was slight and finally, in respect of s 5(B) (2) (d), that there was no social utility in the combination of an unguarded bonfire, a badly lit backyard and a surface surrounding the bonfire that created a trip hazard which "at best was uneven and at worse was made downright dangerous by the presence of at least one hole the size of a bowl".
The plaintiff concedes that the plaintiff was under the influence of alcohol at the relevant time and therefore fell within the definition of intoxication within s 48 of the CLA. However, the plaintiff has submitted that the plaintiff's intoxication was not such that his capacity to exercise reasonable care and skill was impaired and thus his injury would have occurred even if he was not intoxicated. In those circumstances the plaintiff has submitted that the statutory reduction for the plaintiff's own contributory negligence by reason of his intoxication should be no greater than the statutory deduction of 25%.
The Defendant's Case on Liability
The defendant submitted that the assumptions upon which the report of Mr Cockbain were based were not made out, and therefore I would not accept his opinion as to either the foreseeability of the risk involved in the backyard bonfire nor the precations that should have been taken by the defendant.
The defendant submitted that the evidence established that the plaintiff had consumed not only bourbon and Coke, but also an unspecified quantity of another pre-mix known as "Woodstock" from "largies", i.e. 750 ml bottles.
The defendant submitted that there was sufficient ambient light in the backyard provided by the moon, the fire and light emanating from various rooms in the house and garage for persons attending the party to safely utilise the premises, including the backyard.
The defendant submitted that the plaintiff's evidence was unreliable, particularly as to his estimates of depth of the holes that were said to be in the defendant's backyard, the length of the grass and his evidence that Dean Hehir drove him to hospital. The latter was clearly against the weight of the evidence, and to the extent that those matters were corroborated by Daniel Colyer and Matthew Manderson suggested that there was a concoction between the three witnesses which made the evidence unreliable.
The defendant submitted that I should accept Judith Moran's evidence that she drove the plaintiff to Cessnock Hospital, that he was unsteady on his feet and that she could smell alcohol on him. Further, I should accept Katie Johnson's evidence that he fell into the fire after running around it singing, and what caused him to fall into the fire was that he tripped over his own feet. Ms Johnson's evidence was that there was enough light to walk around the backyard and that one could see as one's eyes adjusted to the dark. There were no holes in the backyard according to her evidence.
The defendant further submitted that Cassandra Evans gave evidence that there was sufficient light to see, that there were no potholes in the backyard and that the plaintiff was drinking alcohol to the extent that he was "wobbling and stuff". The defendant submitted I should accept her evidence that the plaintiff was extremely intoxicated. When he went inside he was slurring his words and having trouble walking.
The defendant submitted that Hayden Granger gave evidence similar to the previous two witnesses as to the intoxication of the plaintiff. He had not been feeling well on the night and had consumed little alcohol. His evidence established that the grass had been mowed that day and he had prepared a fire break around the bonfire. Whilst agreeing there were some depressions and unevenness in the lawn, he said that there were no holes six inches deep and the grass was not six inches long. He further confirmed the evidence of Denise Moran about the halogen light being taken away at the request of the girls. He believed that the area was well enough lit.
Finally, the defendant relied on the evidence of Denise Moran, the defendant, to establish that all adequate precautions had been taken by her as a rural fire brigade member to have a safe bonfire in her backyard. Her evidence corroborated Judith Moran's evidence that there were no holes or depressions in the lawn and that she did not consider the bonfire a hazard. It never occurred to her that someone would get burned.
The defendant further relied on the hospital notes taken at the John Hunter Hospital which established that the Surgical Registrar, Dr K Pujar, had made an assessment of the plaintiff that he had "alcohol ++", meaning the plaintiff was well affected by his intake of alcohol.
It was submitted that the risk of injury to the plaintiff was not foreseeable relying on the Court of Appeal decision in Parissis v Bourke [2004] NSW CA 373 and that in any event, the plaintiff's claim was defeated by s 50 CLA by dint of the plaintiff's intoxication. The defendant submitted that the Court could not be satisfied that the plaintiff's injuries were likely to have occurred even if he had not been intoxicated. Alternatively, if the Court was so satisfied, then the plaintiff's own contributory negligence was a substantial contributing factor to his injuries.
Findings of Fact
Having regard to the totality of the evidence, I make the following findings of fact:
(1) That the defendant had given permission to Hayden Granger to hold his 18th birthday party at her home at 11 Cooma Street, Abermain on 26 September 2008.
(2) That the party was to be conducted in the garage on the ground floor of the premises, and in the backyard of the premises around a bonfire.
(3) That Hayden Granger on 26 September 2008 prepared for the birthday party by mowing the grass in the backyard, and prepared a fire break by removing all loose combustible materials from around the fire with a steel rake.
(4) I find that the defendant, as a precaution against spread of the fire, provided a hose to the location of the fire, together with several fire extinguishers along the side of the property.
(5) I find that the plaintiff arrived at the premises at approximately 7.30pm and had been driven by his grandmother, Carol Olsen. She had purchased for him four cans of pre-mixed bourbon and Coke, together with a bottle of bourbon which was to be a birthday gift for Mr Granger.
(6) I find that the fire was lit early in the evening, and that during the evening fuel was added to it by way of wood and branches, and on occasions, small amounts of an accelerant, probably petrol.
(7) Following the departure of his grandmother from the party, after she had experienced mechanical difficulties with her car, the plaintiff commenced drinking alcohol in the form of a bourbon and Coke pre-mix from 8.30pm.
(8) I find that the defendant had provided illumination in the backyard by way of a halogen spotlight, however, she had dismantled that lighting as her daughter and girlfriends had asked her to. In any event, such illumination was not in keeping with the nature of the event, namely, having a bonfire in the backyard.
(9) There was light in the backyard provided by the bonfire itself during the evening, together with ambient light emanating from the upstairs and downstairs rooms in the defendant's home, together with light emanating from the door of the ground floor garage.
(10) I find that there was sufficient light for each of those people attending to make their way from the garage to the bonfire, to make out other people present, and to see where they were walking.
(11) I find that the backyard of the premises was on a slight incline, that it was mainly grassed but with some patches, and that whilst there may have been some indentations in the grass surfaces in places, it was of a type that could be described as an average suburban backyard.
(12) I do not accept the evidence of Daniel Colyer that there were up to eight holes in the backyard which were a foot deep and another five holes which were six inches deep, or that there was a hole near the fire the size of a small bowl. I accept the evidence of the defendant, her mother and Hayden Granger that the backyard had been mown on the day of the party, and prior to that, one week beforehand by the defendant's father. I therefore do not accept the evidence of the plaintiff nor of Daniel Colyer that the grass was in excess of six inches high, and find that the grass was one to one and a half inches in length.
(13) I accept the evidence of Katie Johnson, Cassandra Evans, Hayden Granger and Patricia Farthing, and find that the plaintiff was drinking during the evening and became intoxicated. I further accept the evidence of Katie Johnson that the plaintiff was playing around the fire and was jumping over it.
(14) I find that the plaintiff had danced once around the fire and was in the process of doing so again when he tripped over and fell into the fire.
(15) I find that the plaintiff was able to get himself up from the fire and that he was then rendered assistance by Dean Hehir, Michael Manderson and Daniel Colyer.
(16) I find that the plaintiff was driven from the premises to Cessnock Hospital by the defendant's mother, Judith Moran, in Mrs Moran's vehicle. I do not accept the plaintiff's assertion that Dean Hehir drove him to hospital in Mr Hehir's car, and I note that Mr Hehir was not called to give evidence.
Determination
Prior to the passing of the Civil Liability Act 2002, the Court of Appeal in Parissis & Ors v Bourke, supra, held, in circumstances where the plaintiff was injured in the early hours of the morning when several guests poured an accelerant onto a smouldering barbeque which exploded thereby causing the plaintiff severe burns, that there was no foreseeable risk of personal injury. In that case, the occupiers of the property had retired to bed earlier in the evening. Bryson JA with whom Mason P and Tobias JA agreed, said at [70]:
"70. Barbeque 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."
In agreeing with Bryson JA, Tobias JA said at [4]:
"In Dovuro Pty Limited v Wilkins (2003) 215 CLR 315 at [34] McHugh J emphasised that
"If negligence law is to serve a useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community ... to hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence and with it the administration of justice, into disrepute."
Tobias JA went on to say at para [8], in the context of the legal responsibilities on parental occupiers of domestic premises who permit their offspring to host parties for young adults of or over the age of 18 years:
"It may well be that the community expects such consumers to be responsible for their own conduct when it comes to the consumption of alcohol at a private function in the host's home."
As the plaintiff has submitted, the first step here requires identification of the risk of harm. Here, the risk of harm was that a person attending the party, such as the plaintiff, would fall into the bonfire and sustain injury. S 5B (1) (a) requires the determination as to whether the risk is foreseeable. The test of foreseeability of a risk is that stated in Wyong Shire Council v Shirt, supra. The test for foreseeability has been described as an "undemanding test". Notwithstanding that, in light of the judgment in Parissis referred to above, the risk of personal injury to the plaintiff in these circumstances, by falling into the fire, was not foreseeable and therefore s 5B (1) (a) has not been satisfied.
If I am incorrect in applying Parissis in the manner outlined above, and the risk of harm was foreseeable, the next step required pursuant to s 5B (1) (b) CLA is a determination as to whether the risk was "not insignificant", and further whether a reasonable person in the defendant's position would have taken precautions against it (as required by s 5B (1) (c)).
In determining whether a reasonable person in the defendant's position would have taken precautions against it (as required by s 5B (1) (c)), the court is to consider the four matters outlined in s 5B (2), being (amongst other relevant things):
"(a) The probability that the harm would occur if care were not taken.
(b) The likely seriousness of the harm,
(c) The burden of taking precautions to avoid the risk of harm,
(d) The social utility of the activity that creates the risk of harm."
It is important to properly characterise the risk of harm, and to not determine whether breach has occurred retrospectively - see Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 per Gummow J at [59] - [72]. Here, the defendant did consider risk of harm, namely, damage to property, and responded reasonably to that risk by placement of hoses and fire extinguishers adjacent to the fire which was clearly a responsible and reasonable response to that risk. The risk that someone attending the party such as the plaintiff would fall into the bonfire during the evening was in my view a risk that was not, "not insignificant", and required no response from the defendant by way of precautions. I so find, having regard to the matters set out in s 5B (2), namely, notwithstanding the likely seriousness of severe injury such as burns, there was a very low probability that such injury would occur if care were not taken. Further, the burden of taking such precautions to avoid a risk of that harm was high and there was a social utility in the very activity that created such a risk of harm, namely, the holding of the 18th birthday party and the social interaction involved for the young people attending.
That such bonfires were commonplace in the lives of those present was not in dispute. Mr Granger had attended many since he was 12 years of age, in the company of his family, and the defendant had conducted such activities both before and after the plaintiff's injury. Whilst the defendant acknowledged that having a bonfire was potentially dangerous, it never occurred to her that someone might get burnt by falling into the fire.
Having regard to the findings made by me that:
(1) there was sufficient light for the people attending the party to make their way from the garage to the bonfire, and to make out other people present and to see where they were walking, and
(2) that there were no holes adjacent to the fire the size of a small bowl and that the surface could be described as that of a "average suburban backyard",
I do not accept on the balance of probabilities that the plaintiff's foot became caught in such a hole whilst he was walking from the clothesline to the fire, causing him to somehow fall forward into the fire. Rather, I accept the evidence of Katie Johnson that the plaintiff was singing and dancing around the fire and it was in the process of doing so that he tripped over his own feet and fell into the fire.
In those circumstances, the defendant was under no obligation to take precautions to avoid the risk of that harm to the plaintiff, and particularly the precautions set out in the report of Mr Cockbain. I therefore find that ss 5B (1) (b) and 5B (1) (c) have not been satisfied. I therefore find that there was no breach of the defendant's duty of care to the plaintiff.
If I am wrong in that finding, I would hold that the breach by the defendant if any, of her duty of care was not a necessary condition of the occurrence of the harm to the plaintiff, as required by s 5D (1) CLA, as the plaintiff was not taking care for his own safety. In the circumstances, in determining the scope of liability, there was no reason for responsibility for the harm that came to the plaintiff to be imposed on the defendant.
Further, the defendant relies on s 50 CLA to avoid liability on the basis of the plaintiff's admitted intoxication. The plaintiff has submitted that the injury suffered by him is likely to have occurred even if he was not intoxicated. In Amanda's On The Edge Pty Limited v Dries [2011] NSW CA 358, a case where the injured plaintiff fell from an unguarded wall whilst leaving licensed premises, the Court of Appeal held that it was not proved that the plaintiff was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired as required by s 50 (1). At paragraph [36], Allsop P, with whom Beazley and Giles JJA agreed, said as follows:
"36. The requirement of s 50 (1) was not established. The "extent" of the intoxication relevant for such a finding will depend on the circumstances and the subject or subjects in respect of which the reasonable care and skill maybe impaired. Operating machinery, driving a car or flying a plane may be tasks where little alcohol would be required for the persons' capacity to exercise skill and care to be impaired (adequately satisfied by six beers and two bourbons). Here, the care and skill was walking over open ground to get to a destination. There was no reason for him, in the dark, to suspect such a danger as befell him."
Here, the evidence of Katie Johnson, Cassandra Evans, Patricia Farthing and Hayden Granger, together with the hospital note of Dr Pujar referred to in paragraph 37 above, established beyond doubt that the plaintiff was intoxicated. The extent of the plaintiff's intoxication is indicated by the evidence of Katie Johnson as to risky behaviour he was involved in by jumping through the fire prior to his injury. Immediately prior to his injury he was singing and running around the fire, and was unsteady on his feet. I accept the evidence of Katie Johnson that he tripped over his own feet and that was the cause of his fall. The plaintiff was aware of the placement of the fire and was not taking reasonable care for his own safety. I therefore distinguish the present case from the type of case outlined in Amanda's On The Edge Pty Limited, supra, (and also the other decisions I was referred to including Langendoen v Coolangatta Estate Pty Limited [2012] NSW DC 210, and Davies v George Thomas Hotels Pty Limited [2010] NSW DC 55).
I am therefore not satisfied that the injury suffered by the plaintiff is likely to have occurred even if he had not been intoxicated as I am satisfied that, at the time of his injury, the plaintiff was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired. Therefore, pursuant to s 50 (2) CLA there should be no award of damages in respect of any liability that would otherwise be sheeted home to the defendant (see also Russell v Edwards & Anor [2006] NSW CA 19).
There will therefore be a verdict for the defendant in the proceedings.
Damages
If I am wrong in the findings outlined above, and the plaintiff were entitled to damages, I proceed to assess the plaintiff's damages.
The plaintiff's claim was put on the following basis:
Non-economic Loss - 30% of a most extreme case
$123,000.00
Future Economic Loss - Cushion
$100,000.00
Future Treatment Expenses
$8,535.50
Total
$231,535.50
The defendant submitted that the appropriate damages for non-economic loss would be 25% of a most extreme case, and the plaintiff was entitled to a cushion for future economic loss, being a more modest than that advocated by the plaintiff. There is no real dispute as to the treatment expenses.
The plaintiff was examined by Associate Professor Peter Haertsch on 18 August 2011. The plaintiff complained of a great deal of embarrassment in relation to the pigmentary change involving the donor site of his left thigh, and also the pigmentary change of the lower aspect of his left forearm and the dorsum of his left hand. That change was subject to comment by members of the public in his subsequent employment in bar work. He has occasional numbness in the area. Associate Professor Haertsch described the scarring on the volar aspect of the left hand, on the radial aspect of the palm, as well as the ulna aspect of the palm. There was also contracture of the first web space of the left hand and a contracture of the volar aspect of the fourth web space of the left hand.
Associate Professor Haertsch was of the opinion that the plaintiff had residual disability, particularly in relation to impairment by way of scarring and split skin grafts. He had permanent impairment as a result of the scarring and as a result of the contracture, particularly of the first web space. It was Associate Professor Haertsch's opinion that:
"He should avoid employment in occupations which require lengthy periods of exposure to sunlight, but also to those occupations where he might be exposed to trauma such as manual labouring and those occupations where he might be exposed to chemical dusts and fumes such as the automotive industry."
Having regard to the severity of the plaintiff's injuries, the significant scarring suffered by him, the extreme pain and suffering undergone by the plaintiff during his hospitalisation and subsequent treatment for his burns and the significant impact his injury has had on his life's activities, I find that 30% of a most extreme case is an appropriate award and therefore I assess the plaintiff's damages for non-economic loss at 30% of a most extreme case in the sum of $123,000.00.
The plaintiff was intent on a career in hospitality at the time of his injury and was studying a course towards that goal. Subsequent to his injury he worked in several jobs doing bar work at the Toronto Worker's Club and working in a restaurant known as Milanos where he had to deal with members of the public, some of whom commented on the appearance of his left hand and arm. To his credit, the plaintiff then became a full time carer for his grandmother and is now endeavouring to commence a career as a travel agent. Having regard to the disruption to the plaintiff's studies and his ambition to work in the hospitality industry and the delay in him embarking on a new career as a travel agent, I would assess damages for future economic loss in the sum of $50,000.
I further assess the plaintiff's claim for future treatment expenses in the sum of $8,500.00.
I therefore would assess the plaintiff's damages as follows:
Non-economic Loss
$123,000.00
Future Economic Loss - Cushion
$50,000.00
Future Treatment Expenses
$8,500.00
Total
$181,500.00
If I am wrong in the findings I have made as to liability, I would make a finding pursuant to ss 50 (3) and (4) CLA of contributory negligence, on the part of the plaintiff of 66%.
Orders
I make the following orders:
(1) Verdict for the Defendant.
(2) The Plaintiff to pay the Defendant's costs of the proceedings.
(3) Exhibits to be returned.
(4) Parties to have liberty to apply on 7 days notice for a special costs order.
Decision last updated: 30 January 2013
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