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Dearden v Ryan

Dearden v Ryan

Case [2022] QSC 111 2 June 2022

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SUPREME COURT OF QUEENSLAND

CITATION:

Dearden v Ryan & Anor [2022] QSC 111

PARTIES:

CHARLES OSWALD DEARDEN

(plaintiff)

v
TERENCE BERNARD RYAN and NICOLE THERESE RYAN

(defendants)

AND

ROBERT ANDREW TAYLOR
(third party)

FILE NO/S:

S 366/21

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

2 June 2022

DELIVERED AT:

Rockhampton

HEARING DATE:

7, 8 & 9 March 2022

JUDGE:

Crow J

ORDER:

1. Judgment for the Plaintiff against the Defendant for the sum of $600,797.55.

2. Judgment for the Defendant against the Third Party in the sum of $420,558.29.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – where the plaintiff attended a party held on the property of the defendants – where the plaintiff was set alight by the third party using a fuel source whilst on the property – where the plaintiff suffered serious injuries as a result of being set alight – where the plaintiff alleges the defendants owed a duty of care to the plaintiff to protect him from being set alight whilst on their property – where the defendants deny the duty of care owed to the plaintiff extended to preventing such an action – whether the scope of the defendants duty of care extended to protecting the plaintiff from being set alight – whether the defendants breached that duty of care by not adequately storing the fuel source.

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where the plaintiff suffered serious injuries caused by being set alight – where damages are assessed pursuant to the Civil Liability Act 2003 (Qld) – where assessment of general damages, damages for diminution of earning capacity, damages for care and service, special damages and future medical expenses are in issue.

Civil Liability Act 2003 (Qld), ss 9, 10, 11, 57 and 59.

Civil Liability Regulations 2014.

Civil Proceedings Act 2011 (Qld), s 61.

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, considered.
Allwood v Wilson & Anor [2011] QSC 180, adopted.
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, cited.
Hodge v Barham [2011] WADC 71, considered.
Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16, cited.
Menz v Wagga-Wagga Show Society Inc (2020) 103 NSWLR 103, applied.
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, distinguished.
Roads and Traffic Authority ofNSW v Dederer (2007) 234 CLR 330, applied.
S v S, unreported, NSWCA 17 July 1998, applied.
Smith v Littlewoods Organisation Ltd [1987] AC 241, cited.
Smith v Leurs (1945) 70 CLR 256, considered
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11, applied.
Tocker v Moran [2012] NSWDC 248, considered.
Russell v Edwards & Anor [2006] NSWCA 19, considered.
Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, applied.
WD & HO Wills (Aust) Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dearden v Ryan

Details

AGLC: Dearden v Ryan [2022] QSC 111
Case: [2022] QSC 111
Decision Date: 2 June 2022

CaseChat Overview and Summary

The case of Dearden v Ryan involved a dispute between the plaintiff, who suffered serious injuries from being set alight by a third party at a party held on the defendants' property, and the defendants, who denied any duty of care to prevent such an incident. The plaintiff claimed that the defendants were negligent in not adequately storing a fuel source that was used in the incident, which led to his injuries. The court was required to determine whether the defendants owed a duty of care to the plaintiff and, if so, whether they breached that duty by failing to properly store the fuel source.

The central issue before the court was whether the defendants owed a duty of care to the plaintiff to prevent him from being set alight by the third party. The court had to assess the scope of the defendants' duty of care and determine whether it extended to preventing such an action. The court also needed to decide whether the defendants breached any duty of care by not adequately storing the fuel source, which was used in the incident.

The court found that the defendants did owe a duty of care to the plaintiff to take reasonable steps to prevent foreseeable harm. The court concluded that the risk of a third party using a fuel source to set someone alight was foreseeable and that the defendants had failed to take reasonable steps to prevent such an incident. The court found that the defendants breached their duty of care by not adequately storing the fuel source, which directly contributed to the plaintiff's injuries. The court awarded the plaintiff damages for his injuries, including general damages, damages for loss of earning capacity, damages for care and services, special damages, and future medical expenses.

The court made a final order for judgment to be entered in favour of the plaintiff against the defendants for the sum of $600,797.55. The court also ordered judgment against the third party in the sum of $420,558.29, to be paid to the defendants. This decision underscores the importance of property owners taking reasonable steps to prevent foreseeable harm to guests on their property, even from the actions of third parties.

Orders

Orders of the court

1. Judgment for the Plaintiff against the Defendant for the sum of $600,797.55.

2. Judgment for the Defendant against the Third Party in the sum of $420,558.29.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Dearden v Ryan [2022] QSC 111

Most Recent Citation

Ryan v Dearden [2023] QCA 20

Cases Citing This Decision

Ryan v Dearden [2023] QCA 20
Citation 1 (Para 3)

…a fire at the party; by omitting to do so they were negligent; and their negligence was a cause of the harm suffered. [1] Dearden v Ryan & Anor [2022] QSC 111 (Judgment).…

See all citing cases →

Cases Cited

Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11
Citation 1 (Para 11)

…in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd[69] said: [69] Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11. [107]The correct approach to characterisation of the risk for the purposes of breach of duty under s 5B of the Civil Liability Act was adopted in Port M…
Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329
Citation 2 (Para 7)

…analogous provisions in the Workers’ Compensation and Rehabilitation Act . His Honour said:[64] [63] Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, [77] – [79]. [64]Ibid [77] – [79]. [77]In applying the relevant provisions, the risk of injury must be identified so as to encompass the risk which is…
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
Citation 3 (Para 10)

…intensity) which attends to the proper definition of the identification of the risk of harm as follows:[68] [67] Menz v Wagga-Wagga Show Society Inc (2020) 103 NSWLR 103. [68]Ibid at [61]-[64]. [61]I shall return to that meaning momentarily. But it is convenient immediately to note how the causality embedded in s 5L i…
Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 310
Citation 4 (Para 7)

…ances in which that harm occurred’; Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 310 at [55]; (3) ‘What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential i…
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Citation 5 (Para 5)

…a source of danger. Fundamentally the case is no longer a case of an imposition of liability for a pure omission (see Mason P in WD & HO Wills (Aust) Ltd v State Rail Authority (1998) 43 NSWLR 338 at 359).…
Erickson v Bagley [2015] VSCA 220
Citation 6 (Para 7)

…ccount the particular harm that materialised, and the circumstances in which that harm occurred’; Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 310 at [55]; (3) ‘What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, be…
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
Citation 7 (Para 10)

…rnal, 56 especially at 64–70. [64]Another example is Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219, where an 11-year-old girl was injured during a quad bike excursion in a recreational park. The instructor drove at an excessive speed, causing the girl also to drive too fast…
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Citation 8 (Para 7)

…60]) and the ‘general causal mechanism of the injury sustained’ ( Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98]; (2) ‘the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred’; Erickson v Bagley [2015] VSCA…
Chadley Winston Tocker v Denise Kathleen Moran [2012] NSWDC 248
Citation 9 (Para 15)

…Parissis was also applied by Mahoney SC DCJ in Tocker v Moran [2012] NSWDC 248.[79] The plaintiff, Mr Tocker, was a 19-year-old male who attended the 18 th birthday party at the defendant Moran’s premises. The evidence showed that much alcohol was consumed. At approximately 11:30pm, the plaintiff, Mr Tocker, was ob…
Allwood v Wilson [2011] QSC 180
Citation 10 (Para 1)

…up after being set alight, and the pains he suffered thereafter including as a result of his skin grafting treatment. [120] Allwood v Wilson & Anor [2011] QSC 180. [121]Exhibit 1, Document 4. [122]Exhibit 1, Document 10.…
Hodge v Barham [2011] WADC 71
Citation 11 (Para 14)

…In Hodge v Barham [2011] WADC 71, Ms Hodge was the 17-year-old plaintiff who attended at the 21 st birthday party of the first defendant, Barham’s house. During the party, the son of the first defendant took hold of Ms Hodge in attempt to persuade her to dance with him, however, as he was intoxicated, he fell ont…
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Citation 12 (Para 22)

…As the High Court said in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 436 [23] – [25]: “[23] ...It is important to recognise, however, that the duty alleged in Modbury was said to be founded only on the defendant’s position as occupier of the land controlling the physical state of the land (there the level…
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Citation 13 (Para 8)

…ttributed to the RTA a greater control over the risk than it possessed. [footnotes omitted] [65] Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330. [66]Ibid at [60].…
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Citation 14 (Para 10)

…pping on a recently polished floor which had not been buffed, Bryson JA (with whom McColl JA agreed) explained in CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173]–[174] why the appropriate formulation of the risk was quite narrow: “[173] … Rejecting more highly generalised statements, such as that bad th…
Russell v Edwards [2006] NSWCA 19
Citation 15 (Para 12)

…In Russell v Edwards & Anor [2006] NSWCA 19, the Court of Appeal upheld the decision of Sidis DCJ, dismissing the case brought by Mr Russell. Mr Russell was a 16-year-old who attended at a house party held by Mr and Mrs Edwards for their 16-year-old son. Much alcohol was consumed and late in the evening Mr Russell…
Parissis v Bourke [2004] NSWCA 373
Citation 16 (Para 5)

…ada, had not been accepted in Australian common law. The leading authority is the New South Wales Court of Appeal decision in Parissis & Ors v Bourke [2004] NSWCA 373.[77] [77]Special leave refused, 2005 HCATrans 673, whilst noting in argument that s 54 of the Crimes Act and the “criminal” behaviour relied on by Br…
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
Citation 17 (Para 18)

…In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 267 [29] – [30], Gleeson CJ said “[29] … The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from th…
Pyrenees Shire Council v Day [1998] HCA 3
Citation 18 (Para 5)

…ntally the case is no longer a case of an imposition of liability for a pure omission (see Mason P in WD & HO Wills (Aust) Ltd v State Rail Authority (1998) 43 NSWLR 338 at 359).…
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53
Citation 19 (Para 26)

…ssitudes such that there ought not to be any discount for loss of future economic capacity. [144] Wynn v New South Wales Insurance Ministerial Corp (1995) 184 CLR 485. Domestic Assistance…
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7
Citation 20 (Para 11)

…ut rather as an occupier under the general duty of care under the law of negligence as established in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.…
Smith v Leurs [1945] HCA 27
Citation 21 (Para 8)

…t 619–660 and the August 1996 Supplement at 98-151, esp at 113 and 120, and, in Australia, the general observations of Dixon J in Smith v Leurs (1945) 70 CLR 256 at 262.” [78] S v S , unreported, NSWCA 17 July 1998.…
Medlin v State Government Insurance Commission [1995] HCA 5
Citation 22

…ed. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, cited. Hodge v Barham [2011] WADC 71, considered. Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16, cited. Menz v Wagga-Wagga Show Society Inc (2020) 103 NSWLR 103, applied. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, distinguished. Roads…
[1963] AC 837 [1963] AC 837
Citation 23 (Para 11)

…r type of injury was foreseeable, even if the extent of the injury was greater than expected. Thus, in Hughes v Lord Advocate [ [1963] AC 837 ], there was liability because injury by fire was foreseeable, even though the explosion that actually occurred was not.” [footnotes omitted]…
[1987] AC 241 [1987] AC 241
Citation 24 (Para 8)

…s of the general principles applicable in situations analogous to that in the present case are discussed in Smith v Littlewood’s Organisation Ltd [1987] AC 241 and Husband v Dubose (1988) 531 North Eastern Reporter 2d Series, 600, which give access to the earlier authorities. They show that in general social hos…

Legislation Cited

Civil Liability Act 2003 (Qld) 10, 11, 57, 59, 9
6 mentions (from Para 5)
Civil Proceedings Act 2011 (Qld) 61
2 mentions (from Para 25)
Civil Liability Act 2002 (TAS)
1 mention (from Para 13)
Civil Liability Regulations 2014 (Qld)
1 mention (from Para 1)

CITATION:	Dearden v Ryan & Anor [2022] QSC 111
PARTIES:	CHARLES OSWALD DEARDEN (plaintiff) v TERENCE BERNARD RYAN and NICOLE THERESE RYAN (defendants) AND ROBERT ANDREW TAYLOR (third party)
FILE NO/S:	S 366/21
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	2 June 2022
DELIVERED AT:	Rockhampton
HEARING DATE:	7, 8 & 9 March 2022
JUDGE:	Crow J
ORDER:	1. Judgment for the Plaintiff against the Defendant for the sum of $600,797.55. 2. Judgment for the Defendant against the Third Party in the sum of $420,558.29.
CATCHWORDS:	TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – where the plaintiff attended a party held on the property of the defendants – where the plaintiff was set alight by the third party using a fuel source whilst on the property – where the plaintiff suffered serious injuries as a result of being set alight – where the plaintiff alleges the defendants owed a duty of care to the plaintiff to protect him from being set alight whilst on their property – where the defendants deny the duty of care owed to the plaintiff extended to preventing such an action – whether the scope of the defendants duty of care extended to protecting the plaintiff from being set alight – whether the defendants breached that duty of care by not adequately storing the fuel source. DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where the plaintiff suffered serious injuries caused by being set alight – where damages are assessed pursuant to the Civil Liability Act 2003 (Qld) – where assessment of general damages, damages for diminution of earning capacity, damages for care and service, special damages and future medical expenses are in issue. Civil Liability Act 2003 (Qld), ss 9, 10, 11, 57 and 59. Civil Liability Regulations 2014. Civil Proceedings Act 2011 (Qld), s 61. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, considered. Allwood v Wilson & Anor [2011] QSC 180, adopted. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, cited. Hodge v Barham [2011] WADC 71, considered. Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16, cited. Menz v Wagga-Wagga Show Society Inc (2020) 103 NSWLR 103, applied. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, distinguished. Roads and Traffic Authority ofNSW v Dederer (2007) 234 CLR 330, applied. S v S, unreported, NSWCA 17 July 1998, applied. Smith v Littlewoods Organisation Ltd [1987] AC 241, cited. Smith v Leurs (1945) 70 CLR 256, considered Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited [2022] HCA 11, applied. Tocker v Moran [2012] NSWDC 248, considered. Russell v Edwards & Anor [2006] NSWCA 19, considered. Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, applied. WD & HO Wills (Aust) Ltd v…