Parissis v Bourke - [2004] NSWCA 373

No judgment structure available for this case.

CITATION: PARISSIS & ORS v. BOURKE [2004] NSWCA 373

HEARING DATE(S): 07/10/2004

JUDGMENT DATE:
23 November 2004

JUDGMENT OF: Mason P at 1; Tobias JA at 2; Bryson JA at 11

DECISION: Appeal allowed with costs.

CATCHWORDS: NEGLIGENCE- Occupiers liability- Householders allowed their son aged 18 to hold barbecue party attended by guests aged from 17 (plaintiff respondent) to 25- parents did not supervise lighting or use of barbecue – mother specified light beer only and supplied light beer and food but guests brought champagne and spirits – methylated spirits used to start barbecue- after cooking finished about 8pm, bottle replaced in garage- householders present early, went to cinema, returned about midnight and thought everything in order, offered food which was declined and went to bed – about 2:00am attempts were made to reignite barbecue- guest took methylated spirits bottle from garage- several guests poured spirits from bottle onto smouldering barbecue - after several attempts, spirits exploded and fireball injured plaintiff sitting nearby and not participating in re-ignition: consideration of liability of householders - reasonable foreseeability of risk of injury- US and Canadian case law on Social Host Liability- HELD: no reasonably foreseeable risk of injury, householders had no duty of care- award of damages by District Court reversed.

LEGISLATION CITED: Crimes Act 1900 s.54, s.578A(2)
Suitors’ Fund Act 1951

CASES CITED: Anns v. Merton London Borough Council [1978] AC 728
Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Childs v. Desormeaux 217 DLR (4th) 217
Childs v. Desormeaux 130 A.C.W.S. (3d) 1228
City of Kamloops v. Nielsen [1984] 2 SCR 2
Cole v. South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52
Cooper v. Hobart [2001] 3 SCR 537
Donoghue v. Stevenson [1932] AC 562
Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993)
Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540
Hackshaw v. Shaw (1984) 155 CLR 614
Modbury Triangle Shopping Centre Pty Ltd v. Anzil (2000) 205 CLR 254
Phillis v. Daly (1988) 15 NSWLR 65
R v. D [1984] 3 NSWLR 29
Rylands v. Fletcher (1868) LR 3 HL 330
S v S (unreported NSWCA 17 July 1998)
Smith v. Leurs (1945) 70 CLR 256
State of New South Wales v. Godfrey [2004] NSWCA 113
State of New South Wales v. Napier [2002] NSWCA 402
Stewart v. Pettie [1995] 1 SCR 131, (1995) 121 DLR (4th) 222
W D & H O Wills (Aust) Ltd v State Rail Authority; State Rail Authority v T N T Management Pty Ltd (1998) 43 NSWLR 338
Weld-Blundell v Stephens [1920] AC 956
Wyong Shire Council v. Shirt (1980) 146 CLR 40

PARTIES :
Antonio Parissis, Evelyn Parissis and Fiona Jenny Madias - Appellants
Jordana Rachel Bourke - Respondent

FILE NUMBER(S): CA 40925 of 2003

COUNSEL: B. Gross QC and G. Charteris - Appellants
B. Donovan QC and D.E. Baran - Respondent

SOLICITORS: McMahons, Sydney
Keddies, Redfern

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2588 of 2000

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

CA 40925/03
MASON P
TOBIAS JA
BRYSON JA

TUESDAY 23 NOVEMBER 2004

PARISSIS & ORS v BOURKE

Judgment

1 MASON P: I agree with Bryson JA.

2 TOBIAS JA: I have had the benefit of reading in draft the judgment of Bryson JA. I agree with the orders proposed by his Honour and generally with his reasons. I would, however, add the following short observations.

3 In Tame v New South Wales (2002) 211 CLR 317 at 332 [14], Gleeson CJ observed that reasonableness is

"at the heart of the law of negligence"

Donoghue v Stevenson

4 Again, in Dovuro Pty Limited v Wilkins (2003) 215 CLR 317 at 329 [34], McHugh J emphasised that

"(i)f 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."

5 To similar effect, in Harriton (by her tutor) v Stephens; Waller (by his tutor) v James; Waller (by his tutor) v Hoolahan [2004] NSW CA 93 at [20]-[21], Spigelman CJ, albeit in a context quite different to the present case, emphasised that the law of negligence recognises the need for a duty of care to reflect current community values and standards.

6 In [68] of his judgment, Bryson JA summarises the relevant conduct of the appellants which the respondent submits gave rise to a reasonably foreseeable risk of injury to her or to a class of persons including her. In [69] his Honour considered that there was no such risk. In [70] his Honour refers to the fact that barbeque parties with liquor attended by young adults occur in their hundreds all over Australia every evening. The perception that their activity, supervised or unsupervised by older adults, was one involving a foreseeable risk of personal injury is in his Honour's opinion, entirely wrong.

7 It is in the context of his Honour's findings in [69] and [70] that, in my opinion, current community expectations become relevant. Such expectations would not generally countenance the imposition, on pain of paying substantial damages, of legal responsibility on the parental occupiers of domestic premises who permit one of their offspring to host a party of young adults of or over the age of 18 years. This is particularly so in the present case which involved conduct on the part of one of the guests that was not, by any stretch of the imagination, reasonably foreseeable.

8 The only possible exception to the foregoing – and it is doubtful – would be some form of supervision to ensure that those affected by alcohol did not drive given the reasonably foreseeable risk that if they did they might injure themselves or others. I say this is doubtful because the consumption of liquor, even strong liquor, by those of or over the age of 18 years is both legal and, as his Honour observes, commonplace in the social context which currently prevails. 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.

9 As observed by Bryson JA, this issue is both complex and unresolved in both the United States and Canada. Nevertheless, in my opinion the community does not generally expect the host or the owner/occupier of the home to bear even that responsibility, the burden of which would inevitably result in social functions where alcohol is served becoming a thing of the past. The increased insurance premiums on public liability policies would inevitably see to that.

10 It is in light of these additional observations that I agree with the opinion of Bryson JA that the appellants either did not owe a duty of care to the respondent to supervise the activities of the party-goers at the time of the accident or, if they did have a generalised duty of care, they were not in breach of it at that time.

11 BRYSON JA: The appellants, defendants in the District Court, appeal against the judgment given by his Honour Judge J.K. O’Reilly QC on 1 August 2003. For reasons then stated his Honour gave judgment for the respondent, plaintiff in the District Court, for $210,195.70 as damages for personal injury. The respondent suffered severe burn injuries in an incident which happened at the appellants’ residence at 9 Downpatrick Road, Killarney Heights (the House) early in the morning of 5 April 1998. The challenges on appeal relate only to the Trial Judge’s conclusion regarding liability, not to assessment of damages. I will give a summary of the facts largely based on findings by the Trial Judge.

12 On 4 and 5 April 1998 the appellants were the owners of the House and occupied it as their home. The first appellant Mr Antonio Parissis is the husband of the second appellant, Mrs Evelyn Parissis and the third appellant, Ms Fiona Jenny Madias is Mrs Parissis’ sister. Mr Antonio Parissis was not present at the House at any time relevant and took no part in the events. A number of friends of Angelo Parissis, the son of Mr and Mrs Parissis who was then aged eighteen, attended the House on the evening of 4 April 1998 for a barbecue party. The guests included the respondent who was then in her Higher School Certificate year at school and was aged seventeen; all other guests were eighteen years of age or older, up to about twenty-five. Angelo Parissis asked Mrs Parissis for permission to conduct a barbecue for his friends. Mrs Parissis gave permission and told him to consult with Mr Parissis as to the method of operating the barbecue; she was not able to say whether or not she had previously seen the barbecue in operation. Mrs Parissis gave evidence (Black 85) to the effect that when she agreed to Angelo Parissis having a barbecue party, her only concern was that there not be any alcohol served and she made it a stipulation to him that the guests only have light beer at the barbecue. She explained her concern (Black 91 I) thus: “Well, it’s a bunch of young males, I think it was a fair concern” and said she was concerned about drink driving. She also said that she had lost two cousins in the last eight years in drink-driving accident and neither was at fault (Black 92 J-K) and that she came home early so she could keep an eye on the night (meaning keep an eye on the function) (Black 92 N-Q).

13 Angelo Parissis had no particular knowledge of the method of operation of the barbecue. He had seen his father start the barbecue a few times. It was his father’s practice to soak heat beads (called “jiffies”) in petrol twenty-four hours before using the barbecue, and start the fire using the heat beads with a match and paper. There was no evidence or finding that Mr Parissis gave Angelo Parissis any particular instructions about starting the barbecue. Angelo Parissis had no petrol, and therefore he soaked heat beads in methylated spirits; he did not do this twenty-four hours before using the barbecue but did it on the day of the party. He got the methylated spirits from a bottle stored in the garage of the House. The garage was usually referred to as “the shed.”

14 The Trial Judge found that the respondent probably arrived at about 7.30pm in the company of Angelo Parissis and a guest called John James. The respondent gave a description of events when Angelo Parissis and John James lit the barbeque and started to cook kebabs. When Angelo Parissis ignited the barbecue, he used paper to ignite the heat beads; he did not apply methylated spirits to the combustible material in the barbecue when first lighting it. There was however difficulty in lighting the barbecue, and Angelo Parissis went into the garage, brought out the methylated spirits and poured it onto the heat beads in the barbecue. It is evident overall that the Trial Judge found that Angelo Parissis did use methylated spirits from the bottle to get the fire started, and did not use methylated spirits only in the form of heat beads soaked in methylated spirits. This method seems to have overcome the difficulty as the barbecue was lit with success and Angelo Parissis and John James started to cook kebabs. At this point Mrs Parissis was not present.

15 Mrs Parissis gave evidence that she knew there was a bottle of methylated spirits in the garage: there always was, but she did not know or anticipate that the methylated spirits would be used in connection with starting the barbecue fire, or trying to restart it (Black 89 P-Y). The respondent saw the bottle of methylated spirits next to the barbecue after the fire was lit; the Trial Judge accepted the respondent’s evidence that the bottle of methylated spirits was there at a point in time relatively early in the evening, within one or two minutes after successfully lighting the fire, when Mrs Parissis was quite close to the barbecue; Mrs Parissis was within about a metre away from the bottle of methylated spirits. The Trial Judge accepted the respondent’s account of these matters, and in doing so stated that he preferred her evidence to that of Mrs Parissis whose evidence was that she did not see the methylated spirits bottle. However there was no finding and in my understanding no evidence that Mrs Parissis did see the bottle. She was not asked in evidence whether she did see the bottle. At this point the barbecue stood in a carport. The bottle was of a size usual for a household supply of methylated spirits. The volume of the contents has not been shown in evidence but from the description of the bottle given was probably in the order of one litre or less.

16 After the barbecue was successfully ignited it was used for cooking the evening meal for about 40 or 50 minutes. After the cooking was finished the barbecue was taken out of the carport and placed close to a tree in the yard of the House. At this stage the barbecue would have been hot. At some stage, Angelo Parissis placed the bottle of methylated spirits back in the garage in its usual storage position.

17 Mrs Parissis and Ms Madias were in the House at about 7.30pm when the barbecue was first lit and cooking began. They came downstairs from the main house into the garage and thence to the carport. Mrs Parissis said that she was unaware whether or not the barbecue was lit at that time, but the Trial Judge appears to have accepted that it was. Mrs Parissis and Ms Madias left the House and went into the City where they saw a film at a session which began at 8.00pm. They returned later in the evening, at about 11.30pm or (it might well be) a little later. Mrs Parissis saw that about ten guests were then sitting in the carport area; she said that it was her observation that they appeared to be “relaxed” and she chatted with them and asked if anyone wanted any food; this was answered in the negative. She then cleared the table to some extent. It was her observation that the guests did not appear to be under the influence of alcohol. Ms Madias also gave evidence that when she and Mrs Parissis returned from the City the guests did not appear to be intoxicated. There was no finding and no suggestion was made in cross-examination to Mrs Parissis or Ms Madias that the guests or any of them were intoxicated, or affected by liquor to any more serious extent than indicated by their being described as “relaxed,” and there was no suggestion and no finding that there was or that they observed any unruly or disorderly behaviour. Ms Madias’ evidence was (Black 97 I, 99 P) that when she returned from the City none of the guests appeared to be intoxicated; they seemed orderly, they were sitting around in a circle just chatting, they were not being rowdy and she did not see the need to interfere with the party (Black 99 S-X). Mrs Parissis and Ms Madias then retired to bed at around mid-night, leaving the party in progress.

18 At this stage cooking had been completed more than three hours, perhaps four hours earlier. The barbecue was standing under the tree and was no longer in use; and as no-one requested further food when Mrs Parissis asked, it would be reasonable for Mrs Parissis and Ms Madias to assume that there was no likelihood of the barbecue being ignited again.

19 In the respondent’s account, at about 1.00 am guests became hungry, and efforts were made to restart the barbecue fire. Other evidence places the event at 2.00 am or 2.30 am. At this point the barbecue had not been used for cooking for five hours or more; it would have cooled down completely by this time. John Karas, a guest at the party, gave evidence that the decision to relight the barbecue was dictated by hunger. Others spoke in evidence of the need for warmth; the Trial Judge said “Perhaps nothing turned on this.”

20 The Trial Judge found that the relighting was attempted by the use of leaves, sticks and paper, assisted by a cigarette lighter. Flame would apparently appear for a little while and then die out. John James went into the garage, got the methylated spirits bottle, and he put some on the barbecue. John Karas and another guest Christian Tobar, also put methylated spirits on the barbecue. The activity of throwing methylated spirits on the barbecue lasted some five or ten minutes. During this period each of the three men threw methylated spirits on the fire three or four times. When giving evidence, John Karas described and demonstrated how he threw methylated spirits on the barbecue; there was a flame on the barbecue at the time he threw the spirits. During this activity at least three persons, including the respondent and Eleni Moutevelis (Angelo Parissis’ sister) told John Karas to put the methylated spirits bottle down and others gave him warnings; but he ignored the warnings and continued. The respondent’s evidence, which the Trial Judge seems to have accepted, was: (Red 45)

Everybody was making a big fuss and screaming and telling [John Karas] it was dangerous and to stop. …Jim Kalimbas said to [John Karas] that when there is only a slight amount of methylated spirits in the bottle if you pour it on to flames or try to light it, ...it can…sort of come back at you and explode outwards.

Everyone was laughing about it and [John Karas] said “oh, just one more time. Wouldn’t it be funny if I was driving home and my arm was on fire.”

He then threw methylated spirits on the barbecue and the flame arched back towards the bottle, there was an explosion, and his arm appeared to be on fire. A large fireball injured several persons nearby, including the respondent.

21 The Trial Judge said: (Red 68) “in the absence of actual burning activity it is likely that there had been a build up of the spirits causing the flashback on the last throw by [John Karas].” His Honour further said: (Red 62) “the plaintiff’s injuries were sustained as a direct result of [John Karas] throwing methylated spirits on a Weber Barbecue.”

22 The Trial Judge noted that of the three persons (John Karas, John James and Christian Tobar) who engaged in the throwing activity, only John Karas was called as a witness; John James and Christian Tobar were not called by the appellants as witnesses and there was no explanation given for their absence. His Honour seems to have regarded this as in some way supportive of the respondent’s case. His Honour did not give a reason, and no reason appears, why it was for the appellants in particular to call these two persons as witnesses or otherwise to suffer some adverse comment or inference, but his Honour said: (Red 43)

I therefore draw the conclusion that their evidence would be unlikely to assist the case for the defendants.

23 The Trial Judge gave some attention to the question whether Angelo Parissis was in fact present at the time of the events when there were attempts to restart the barbecue, or at the time of the explosion. It is not clear why the Trial Judge treated this issue as significant, as it was not the respondent’s case that the appellants were vicariously liable for conduct of Angelo Parissis, nor was it the respondent’s case that Angelo Parissis threw methylated spirits on the fire or took part in the events.

24 The Trial Judge took an adverse view of Angelo Parissis’ credibility. In Angelo Parissis’ account of the events, he was upstairs with his girlfriend Caroline for about twenty minutes prior to driving her home; he then came downstairs and was entering his car, which was parked on the grass about three metres from the barbecue guests, when he noticed that John Karas’ hand was on fire. In John Karas’ account of the events the explosion occurred and Angelo Parissis then alighted from his car. Angelo Parissis said he had heard no talk about restarting the barbecue. It was the Trial Judge’s view of the facts that Angelo Parissis knew something of the events relating to restarting the barbecue, as his Honour found: (Red 42)

If he was in fact entering his vehicle immediately pre accident, it is difficult to see how he would not be aware of the activity of throwing the methylated spirits since these activities on my findings lasted for some 5 to 10 minutes.

25 There was no basis on which to find, and it was not found by the Trial Judge, that Angelo Parissis brought the bottle of methylated spirits back from the garage for the purpose of restarting the fire, or authorised its use. Overall it appears from the Trial Judge’s findings that Angelo Parissis took some part in restarting the fire; but there was no finding that he took some part in using the methylated spirits. It should also be understood that the Trial Judge found Angelo Parissis was present or nearby, in or getting into his car, when the explosion occurred.

26 The Trial Judge also reviewed and made findings on the evidence relating to the availability and consumption of alcohol. It is evident that this material was important for his Honour’s conclusions.

27 The Trial Judge referred to and appears to have accepted evidence to the following effect. Before the barbecue party began Mrs Parissis stipulated to Angelo Parissis that only light beer was to be consumed. She bought light beer and food for the party. When Mrs Parissis and Mrs Madias returned from the City their observation was that the guests appeared to be “relaxed,” and that they did not appear to be under the influence of alcohol. The Trial Judge was satisfied that there were bottles of spirits present, both when Mrs Parissis and Ms Madias were leaving for the City and when they returned. His Honour said: (Red 38)

I don’t suggest that she has set out to deceive the court but I think she has closed her mind to the presence of this stronger liquor.

I make the same finding as to [Ms Madias’] evidence in that she said that the guests did not appear to be intoxicated (on her return from the city).

28 The Trial Judge referred to Angelo Parissis’ evidence that beer and ice were placed in a recycle bucket, that he drank beer and also Scotch Whisky which was provided by guests, and that the female guests brought their own liquor. John Karas took Red Label Johnny Walker Scotch Whisky to the party, and placed it on the table near the barbecue; he observed other bottles there including vodka. The respondent gave evidence that there were two large tubs full of ice with “all sorts of liquor, vodka, heavy spirits, beer, wine and champagne,” that John James poured her champagne which he obtained from one of the tubs, and that she consumed two drinks of champagne and two of spirits by the time Mrs Parissis and Ms Madias returned. Angelo Parissis said that during the party there were drinking games; the female guests used their own liquor for this procedure, and it was not only light beer that was consumed. The Trial Judge accepted, on the basis of the evidence of John Karas, that a drinking game called “Ducky Fuzz or Fuzzy Duck” took place in which a person who made an error in pronunciation had to skol or drink down a glass of liquor immediately. The respondent said that at that time “everyone was pretty drunk”. Most of the drinking games occurred in the middle of the evening, and all three persons who later threw methylated spirits on the barbecue took part in them.

29 The respondent said that while Mrs Parissis and Ms Madias were at the movie….”everyone was having a fair whack at the spirits so I would say John James, John Karas, Christian Tobar, all the party would have been quite drunk.” The respondent also said that the guests “pretty much constantly had drinks” and “we didn’t ever run out of drinks the whole night.” She also said “everyone was dancing like …what teenagers are like at a party. No one was just sitting down or standing up.” The Trial Judge found “…the fact that they had been drinking for something in the order of 6 or 7 hours together with the wild behaviour of [Christian Tobar], [John James] and [John Karas] and the statements by [John Karas] immediately pre accident justifies a conclusion that ‘they were affected by alcohol.’”

30 The dispositive passages in the judgment appear to be these: (Red 75W)

It follows that I am satisfied that there was concern on the part of the defendants that the teenagers may ingest too much alcohol and may do something silly. Also there is confirmation as to the presence of spirits available before the 2nd and 3rd defendants left for the movies and, on their return, it should have been apparent to them that at least some of the guests were affected by alcohol. Add to this the presence of the methylated spirits bottle at about 7 to 7.30pm.

The general risk of misbehaviour in the particular context was apparent to the 2nd defendant and the particular danger evidenced by the presence of the methylated spirits bottle was apparently not even noticed after the return from the movies.

I take judicial notice of the fact that methylated spirits is a fire accelerant and therefore capable of causing damage. In the circumstances, [it] should have been locked away, or at least, the attempted relighting should have taken place at a safe distance from the guests.

In my opinion, the combination of youth, alcohol and the presence of a dangerous substance is sufficient to put the plaintiff and the other guests into the position of a special relationship with the defendants and hence to require reasonable steps to be taken to protect them from being burnt.

Particularly in view of the lack of experience by Angelo Parissis some mature supervision was called for so far as the barbecue lighting was concerned.

There does not appear to me to be any issue as to causation. There will therefore be a judgement for the plaintiff.

31 The Trial Judge’s statement of the facts on which his disposition was based, and also his statement of the grounds of disposition are quite diffuse. My interpretation of the grounds on which his Honour concluded that the respondent was entitled to succeed is as follows.

32 The appellants who were the householders knew that a social function, a barbecue party, was arranged by Angelo Parissis who invited a number of guests, and Mrs Parissis and Ms Madias were at the House at a time when they could observe that the guests attended, and that the barbecue party commenced and was actually taking place. Mrs Parissis knew in advance that the barbecue party was to be held, and she gave Angelo Parissis permission for it and made arrangements which enabled it to take place including buying food and light beer. Mrs Parissis also had knowledge that Angelo Parissis was to use the barbecue and was to find out how it operated. Methylated spirits, in a small quantity usual for domestic use, were stored in the garage of the House and readily available near the barbecue. Mrs Parissis and Ms Madias had the opportunity to find, if they had looked into the subject or made inquiries, that Angelo Parissis used the methylated spirits to ignite the barbecue early in the evening, but they did not have actual knowledge that it was used. Mrs Parissis and Ms Madias had the opportunity to observe that alcoholic drinks other than light beer, including champagne and spirits, were being consumed; but did not make any particular observations whether or not they were used. The Trial Judge’s finding that Mrs Parissis closed her mind to the presence of alcohol implies that she did not concern herself with whether or not liquor stronger than what she had provided was actually being consumed.

33 When Mrs Parissis and Ms Madias returned from the City it was plain that the guests had been drinking alcoholic drinks, but they did not observe that spirits had been drunk and Mrs Parissis closed her mind and made no inquiries. At this stage the barbecue had not been in use for several hours and was no longer alight, and no guests expressed a wish for more food when asked. There were no signs of disorderly behaviour. Mrs Parissis and Ms Madias retired to bed and did not exercise any supervision or control over events after they did so. It should then have been apparent to them that at least some of the guests were affected by alcohol. It is a notorious fact that teenagers in a social situation involving alcohol, dancing and related activities are likely to engage in conduct that could be described as dangerous. There should have been concern on the part of the appellants that the teenagers might ingest too much alcohol and might do something silly. The general risk of misbehaviour was apparent to Mrs Parissis and Ms Madias. Methylated spirits were present about 7pm to 7.30pm, and Mrs Parissis and Ms Madias could have known this but did not notice it, either before they left to go to the City or after they returned. (There appears to have been a significant error of fact in that it is clear that when they returned the methylated spirits bottle could not be noticed as it had been placed back in the garage.)

34 The combination of youth, alcohol and the presence of methylated spirits, a dangerous substance, was sufficient to put the guests including the respondent into the position of a special relationship with the appellants, so that it was the duty of the appellants to take reasonable steps to protect the guests including the respondent from being burnt. It was the duty of the appellants to provide mature supervision of lighting of the barbecue, particularly in view of the lack of experience of Angelo Parissis.

35 The breach of duty which it should be understood the Trial Judge regarded as having occurred was:

· It is known that methylated spirits are a fire accelerant and are capable of causing injury. Thus:

a) The methylated spirits should have been locked away;

b) Alternatively, the attempted relighting should have taken place at a safe distance from the guests.

· The appellants did not provide mature adult supervision in lighting the barbecue.

36 The Trial Judge’s decision on causation appears to have been thus:

37 It must respectfully be said that the Trial Judge’s disposition of the proceedings, which I have attempted to restate in as favourable and ordered a manner as I find possible, leaves much unstated.

38 The guests were spoken of as teenagers and there was no address to their being adults aged eighteen to twenty-five, with the exception of the respondent whose conduct caused no harm. Very little was stated about whether and how the appellants had control or the opportunity to exercise control over events at the function, particularly the events in which the barbecue was relit. There was no examination of the means of control available such as requiring guests to leave, forbidding or preventing the barbecue from being relit, or locking away methylated spirits, or of circumstances which reasonably required the appellants to take some such measure.

39 There was no clear address to the appellants’ knowledge or means of knowledge that methylated spirits were used at all, or to any circumstances which made it their duty to inquire into and ascertain whether methylated spirits were to be used again. The appellants’ lack of participation in the use of methylated spirits at any stage was not addressed. Mrs Parissis’ opportunity to see the methylated spirits bottle early in the evening was treated as important, but there was no address to why (if there were reasons) she should have inquired into or ascertained whether it was used then. There was no address to reasons, if there were any, why the appellants or Mrs Parissis in particular should have foreseen that the barbecue might be relit, or that methylated spirits might be used to relight it, after she returned from the City, did some tidying up, asked whether food was required and received negative answers. The Trial Judge mistakenly thought that the methylated spirits bottle was available to be noticed when Mrs Parissis and Ms Madias returned from the City; but it was then in the garage. The Trial Judge was of the view that the methylated spirits bottle should have been locked away, but did not give the basis for this view, which was not based on any evidence about reasonable practices in handling methylated spirits in domestic quantities. The Trial Judge did not explain causation in terms of the relation between whatever it was that his Honour regarded as breach of duty by the appellants and the explosion and the respondent’s injury. It was particularly important, as his Honour recognised, that the activities of the three firelighters immediately before the accident were quite extraordinary, and were recognised by others as quite extraordinary. His Honour’s views about the foreseeability of their behaviour and of the explosion should have been explained.

40 There was no reference in his Honour’s disposition to the involvement of Mr Antonio Parissis in the findings of liability. Answers given to the Court of Appeal by counsel in the course of argument show there was no advertence at all at the hearing to whether or not Mr Parissis was in a separate position to the other appellants, although it is plain that he had no involvement in any of the activities at all, and no part in the events except that he was a co-owner, and was one of the three householders and occupiers of the House.

41 In my opinion the grounds of disposition given by the Trial Judge are so unclear, and there are so many apparently significant aspects of the facts and necessary parts of the reasoning process left unstated, that they cannot be allowed to stand as grounds on which the proceedings could be disposed of. The reasons given are erroneous in that they are altogether inadequate, and do not make the grounds of disposition known; and they should be set aside for that reason. In my view this Court should embark on its own consideration of whether, on the facts found, the respondent was entitled to succeed.

42 Senior Counsel for the respondent explained the basis on which the respondent should succeed as follows. Mrs Parissis, one of the occupiers, was present at significant times, permitted Angelo Parissis and the other young guests to have a barbecue party and to use the barbecue. As she had no knowledge of how the barbecue was to be lit, she directed Angelo Parissis to find out from Mr Antonio Parissis how to light it, but made no inquiry herself. Methylated spirits were used when the barbecue was lit initially. Mrs Parissis had the opportunity to see the methylated spirits bottle next to the barbecue before she left for the City. Mrs Parissis and Ms Madias should have seen the methylated spirits bottle at around 7.30pm, within one or two minutes after successfully lighting the fire, when Mrs Parissis was within about a metre away from the bottle. After cooking had been completed the barbecue went out completely and was relit after an interval of some 5 or 6 hours. The flame kept going out, leaving only some spark in the barbecue, and methylated spirits were thrown on the barbecue to try to get it alight.

43 The bottle of methylated spirits was present when Mrs Parissis and Ms Madias left to go to the City, and also when they returned. (As mentioned earlier, the last contention is erroneous). There were two large tubs in which there were all types of alcohol including spirits. John Karas brought whisky, and drinking was continuing when Mrs Parissis and Ms Madias returned from the City. Before the party took place Mrs Parissis stipulated that there was only to be light beer and provided it, but then closed her mind to the presence of strong liquor. Mrs Parissis must have known that the rule she had herself laid down was being broken. She was effectively aware, or should have been aware, that stronger alcohol than she had specified was present and that guests were drinking it. The condition of guests was described by the respondent as “out of it, doing silly things, you know, and not absolutely drunk. … Everyone was dancing like … what teenagers are like at a party.” Everyone was pretty drunk when Mrs Parissis and Ms Madias returned from the City. Mrs Parissis was concerned that the teenagers might consume too much alcohol. It should have been apparent to Mrs Parissis and Ms Madias on their return that the guests were affected by alcohol.

44 There were drinking games during the evening, in which the persons who later threw methylated spirits on the barbecue participated. Throwing the methylated spirits continued over five or ten minutes. Angelo Parissis brought the methylated spirits from the garage to light the barbecue on the first occasion. John James brought the methylated spirits from the garage to light the barbecue on the second occasion. Angelo Parissis was aware that methylated spirits were thrown on the barbecue on the second occasion.

45 At least three guests warned John Karas that the methylated spirits could explode outwards, and shouted warnings; he was told to put down the methylated spirits bottle, made a reply which indicated that he did not take the warnings seriously and continued to throw methylated spirits on the fire. John Karas and the others who threw methylated spirits were affected by alcohol.

46 After giving this explanation, Senior Counsel for the respondent contended that in these circumstances there was a duty of care on Mrs Parissis who permitted the premises to be used for drinking activity by young people, one of whom was under eighteen years of age and others up to twenty-five years of age, who were considered to need supervision; that she had a duty to take some care to look after these young people in their drunken state. The breach of duty and the causation were that Mrs Parissis and Ms Madias retired to bed, and did not maintain supervision by keeping an eye on the guests from time to time to see how they were going. There was a duty constantly to supervise the guests for the whole of the evening so as to ensure that, if there was any indication of any unruly behaviour, the occupiers could stop the unruly behaviour before it caused problems.

47 It was further contended that imposition of this duty was not unreasonable or burdensome; that social events of this kind were not frequent and happened once or twice a year. It was contended that there would be very few parties of eighteen year olds at which there were not adults present, and that the group was not large and that supervision would not have been difficult. The reasonably foreseeable risk was that an injury would occur through drunken and unruly behaviour, horseplay or in some other way.

48 Counsel further observed that there was a failure on the part of the appellants initially to determine whether the barbecue was to be started and whether it was started in a correct, proper and safe manner.

49 It is correct that there was no supervision, and that the management of starting the barbecue fire on the first occasion was left to Angelo Parissis. However Angelo Parissis managed the event in a manner which was safe, and did not create the danger later created when methylated spirits were handled in a completely different manner. No explosion and no injury were caused by Angelo Parissis’ method of lighting the barbecue fire. Mrs Parissis did not see the method he used, and it was not found that she saw that the methylated spirits bottle was present.

50 In my opinion there is a very great gulf between the activity of Angelo Parissis in first starting the barbecue fire, by pouring methylated spirits on the heat beads which were then ignited, and what took place before the explosion, when combustible material was ignited but did not flame, and the methylated spirits were poured on the barbecue, from a bottle, repeatedly. The second event was not a repetition of the first, but an event of a completely different character; it was a dangerous event and the danger was obvious. Other adults, adult guests, were present and made a number of warnings of which no notice was taken by John Karas. Adult supervision was actually exercised in the sense that adult guests repeatedly warned against continuing the activity. The danger was grossly obvious, so obvious that it must have been known to John Karas, who was himself an adult, even without any warning. Warnings were given, and he took no notice.

51 It was contended that it was reasonably foreseeable that if Mrs Parissis and Ms Madias went to bed and the guests were still drinking there was a risk of some form of unruly behaviour giving rise to danger of personal injury; and that there was negligence in the respect that Mrs Parissis and Ms Madias went to bed leaving the guests unsupervised. The courses open to Mrs Parissis and Ms Madias if supervision had been exercised included counselling and warning against unruly behaviour, and requiring guests to leave. It was contended that a warning from Mrs Parissis and Ms Madias as the occupiers would have had a different effect to warnings from adult guests of the danger of throwing methylated spirits; the warnings by other guests, it was said, were a challenge situation.

52 Counsel was then asked to illustrate the range of unruly behaviour which should have been foreseen and his exemplifications included guests throwing bottles at each other. In my opinion John Karas’ behaviour and the explosion were events of a completely different kind to horseplay or unruly behaviour by young adults at a social function where alcohol is plentiful. Young guests in liquor might well be unruly; it is not in my opinion in the foreseeable range that they will behave with criminal negligence and persist against warnings. Horseplay, leap frogging, dancing on tables, swinging on tree branches and arm wrestling are in one class of unruly behaviour; throwing methylated spirits from a bottle containing several inches of methylated spirits on a barbecue where there is some ignition is behaviour of a completely different order, obviously grossly dangerous to life and limb. It involves the crime of causing grievous bodily harm by negligent act contrary to s.54 of the Crimes Act 1900, and is not within the kind of unruly behaviour which young adults might reasonably be foreseen to engage in at a social function in a suburban backyard. A person of whom such behaviour is foreseeable could be dealt with only by not including him in a social function at all; he could be left to seek the company of those whom all reasonable people avoid, who might throw bottles and glasses at other guests or bring pet snakes or hand grenades to social events.

53 Counsel accepted that the age of the guests was a significant fact, and said that the case for a duty of supervision begins to weaken where guests are in their late twenties, and if the guests were in their forties the respondent would have no argument. Counsel contended that generally speaking society considers that teenagers and young adults require supervision, exemplified by special licensing controls on supply of liquor to young persons, and on their driving motor vehicles.

54 Counsel were not able to refer to any significant Australian authority dealing with situations of fact which are in any relevant way analogous to the present facts. Reference was made to Cole v. South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52; in which the relationship between the parties and the nature of the events which occurred at and off the premises are materially different to the present case. Senior Counsel for the appellants drew attention to the decision in S v S (unreported NSWCA 17 July 1998). Publication of the full names of the parties in that case is restricted having regard to s.578A(2) of the Crimes Act 1900. In that case one guest at a social function was sexually assaulted with violence by another guest; the host, in answer to a call for help, saw what was happening and did not intervene, and was held liable for damages in respect of the whole event upon an inference that he was well aware of the danger that the plaintiff would be assaulted from the outset. The existence of a duty of care was conceded, and the issues on appeal related to breach. Priestley JA, who accepted the concession, gave some consideration of the basis on which there was a duty of care, and said:

Smith v Littlewood’s Organisation Ltd

Husband v Dubose

Jobe v Smith

Smith v Leurs

55 The facts of the present case direct attention to the observations of Dixon J in Smith v. Leurs (1945) 70 CLR 256 at 261-262:

But, apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger.

56 The circumstances in which a duty of care in negligence can require protection of persons to whom a duty is owed from the criminal behaviour of another person were considered in Modbury Triangle Shopping Centre Pty Ltd v. Anzil (2000) 205 CLR 254; see Gleeson CJ at 265 and 268 [26] to [34]. It is also important to notice Gleeson CJ’s treatment of the duty of care owed by an occupier to a person lawfully upon the occupier’s premises, the relation of that duty to the existence of control, and the limits, demonstrated by the decision in Modbury itself, of the control available or imputed to an occupier over criminal behaviour of third parties. See 263 to 265 [17] to [25] (Gleeson CJ) and 293-294 [117] (Hayne J). Although the possibility that a duty of care to prevent the criminal behaviour of third persons may exist in some relationships has been recognised – see Gleeson CJ at 265 [26] – the general position is that a duty of care does not extend that far. This judicial view finds expression in factual contexts which are quite various: see W D & H O Wills (Aust) Ltd v State Rail Authority; State Rail Authority v T N T Management Pty Ltd (1998) 43 NSWLR 338 at 358-360, which relates to entry of thieves from premises occupied by the defendant to premises in which the plaintiff’s goods were stored; State of New South Wales v. Napier [2002] NSWCA 402 which relates to threats and hostile acts of inmates of a Correctional Centre towards a tradesman employed there; and State of New South Wales v. Godfrey [2004] NSWCA 113, which relates to nervous shock incurred in a hold-up carried out by a prisoner who had been allowed to escape from prison several months earlier.

57 In my view there is a limit of a similar kind to the duty of care which the law should impute to the appellants in the present case. The element in the facts which gives rise to the limit is the absence of any available and effectual means of control by the appellants over the conduct of John Karas in the course of which the explosion occurred. Effectual means of control were absent even though some measures which it can be supposed the appellants might have taken would or could have diminished the likelihood of grossly dangerous and criminally irresponsible behaviour on the part of John Karas. It might be that if Mrs Parissis and Ms Madias had stayed awake for an hour or two longer than they wished to, and had spoken warnings to John Karas, they might have influenced him against doing what he did; but he had warnings from other adults, and the warnings were superfluous as he must have known the danger of what he was doing. The concept of control is considerably strained if control is imputed to the appellants because of the opportunity, such as it was, that the occupiers had to influence events. The attribution to the occupiers of control over the activity which took place would plainly be fictional. There was no element of control available to them over the activity which actually took place.

58 A difficulty of doctrine in this area is the very wide range of the kinds of conduct which are subject to criminal penalties; it may well be that some forms of behaviour which can literally be shown to be breaches of statute law, and to be crimes, should not be treated as outside the occupier’s control, and on the other hand there may be some acts of gross irresponsibility and danger which cannot be shown literally to be crimes, but take the actor outside the range of the occupier’s imputed control. If it is to be said that John Karas’ behaviour was criminal, the standard of negligence which must be applied under s.54 of the Crimes Act 1900 must be satisfied. The test for negligence in s.54, as adopted by Yeldham J for the Court of Criminal Appeal in R v. D [1984] 3 NSWLR 29, was:

59 Although John Karas’ criminality has not been put to the test of a criminal trial, at which the decision of a jury would be obtained on the application of the test, I see no reason to doubt that his conduct would bring him within the penalties of s.54. However I do not regard his liability to punishment for crime as the touchstone of his conduct’s being treated as beyond the control and responsibility of the appellants as occupiers.

60 What excludes criminal behaviour from the occupier’s responsibility is not specifically its criminality but its extreme nature in relation to what the occupier could reasonably foresee and should reasonably control. When behaviour is extremely unlikely, extremely irresponsible or otherwise extreme it may be beyond the limits of the occupier’s responsibility whether or not on close consideration it is subject to some criminal sanction. Extreme behaviour cannot be reasonably foreseeable either because 1) the risk is reasonably foreseeable but the maturation of the risk depends on criminal behaviour; or 2) the risk is not reasonably foreseeable because the maturation of risk depends on unpredictable criminal behaviour. If behaviour is unpredictable, the harmful outcome of the maturation of the risk may not be reasonably foreseeable. John Karas’ conduct was obviously extremely dangerous, and this must have been obvious to him, and that in my mind is enough to place his conduct outside the range of the occupiers’ liability whether or not it is strictly shown to have been criminal behaviour. The unpredictability of John Karas’ behaviour is one of the reasons, and is at the centre of the reasons why a duty was not imposed, even if the risk of harm was reasonably foreseeable.

61 Senior Counsel for the appellants took considerable care to find and refer to decisions in Australia and elsewhere which might offer some analogies. Counsel referred to a large body of case law in States of the United States of America dealing with what is referred to compendiously as Social Host Liability, in relation to injuries suffered by or caused by a guest to whom a Social Host has served alcohol. Counsel referred us to two articles, “Social host’s liability for death or injuries incurred by persons to whom alcohol was served” by DS Kane at 54 American Law Reports 5th 313 and “Duty of possessor of land or chattels to control conduct of licensee” in the Restatement of the Law, 2nd, Torts, p.318, and to Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). (which relates to a traffic accident). Counsel also referred to several texts published in the United States. Although facts of many different classes have been considered, the most usual is that of an intoxicated guest who leaves the host’s premises driving a vehicle and causes injury or death on the highway. Experience in the courts of the American States is not uniform, and is complicated in many States by statutory provisions dealing with the liability of suppliers of alcohol, supply of alcohol to minors and commercial supply, referred to as Dram-Shop Laws. In some States the liability of Social Hosts has been enhanced by statute and in some States it has been relieved. To my mind experience in the United States serves to illustrate the complexities of the subject, but does not resolve them.

62 Senior Counsel for the appellants also referred us to the decisions of the Ontario Supreme Court in Childs v. Desormeaux 217 DLR (4th) 217 (first instance) and of the Ontario Court of Appeal in Childs v. Desormeaux 130 A.C.W.S. (3d) 1228. That case also relates to a traffic accident occurring to intoxicated guests after they had departed. The decision of the Court of Appeal is to the effect that on the facts of that case no duty of care was owed by the Social Host to third party users of the road, although the Court did not exclude the imposition of a duty of care upon a Social Host from further consideration; see 240 [76] (Weiler JA). Weiler JA applied tests for the existence of duty of care which are authoritative in Canada, but are not authoritative in Australia. Although it was not necessary to decide on that ground, Weiler JA was of the view that policy reasons did not exclude the imposition by the courts of a duty of care on Social Hosts, and was not of the view that such a decision should be left to the legislature.

63 Childs v. Desormeaux is interesting for its address to a number of considerations which would arise if the law in this area were to be developed, although the address is in the context of the authoritatively established tests in Anns v. Merton London Borough Council [1978] AC 728, City of Kamloops v. Nielsen [1984] 2 SCR 2 and Stewart v. Pettie [1995] 1 SCR 131, (1995) 121 DLR (4th) 222 for determining the existence of a duty of care. Unlike the tests established in Australia, Canadian law follows Anns v. Merton London Borough Council in addressing proximity and the question whether it is just and fair to impose liability – Cooper v. Hobart [2001] 3 SCR 537. In Canadian law there is a further test whether residual policy considerations outside the relationship of the parties affect the imposition of a duty of care. Weiler JA gave consideration to the impact of imposition of a duty of care on Social Hosts. Weiler JA’s wide survey of Canadian authorities does not refer to any case with observably close analogies to the present case.

64 While I acknowledge and appreciate counsel’s industry and assistance, I do not finally find any persuasive material in the extensive references to North American law.

65 A decision whether an occupier is liable in negligence to a person on the occupier’s land must be made in accordance with the law as restated in Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 in the judgments of Mason, Wilson, Deane and Dawson JJ, which establish that the general duty of care under the law of negligence applies to the liability of occupiers; it was their Honours’ view that the operation of the law should be simplified to accord with the following statement of Deane J in Hackshaw v. Shaw (1984) 155 CLR 614 at 662 to 663:

qua

66 As explained in Phillis v. Daly (1988) 15 NSWLR 65, this conclusion governs the law in New South Wales, although the purpose of the plaintiff’s entry remains a relevant factor. The reference to proximity in the judgment of Deane J in Hackshaw v Shaw must be understood to have undergone ecthlipsis by a process completed in Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540. See McHugh J at 583 [99], Kirby J at 624-626 [234-237].

67 The approach laid down by Wyong Shire Council v. Shirt (1980) 146 CLR 40 is to be applied in determining the liability of an occupier of premises: see Mahoney JA in Phillis v. Daly at 71-72. The Shirt Calculus was stated in Wyong Shire Council v. Shirt at 47-48 by Mason J in these terms:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

(“Proximity” is not an expression used in this passage).

68 Addressing the first part of the Shirt Calculus, I consider whether reasonable people in the position of the appellants would have foreseen that their conduct involved a risk of injury to the respondent or to a class of persons including the respondent. Their conduct overall appears from earlier passages, but to state the matter shortly, they permitted Angelo Parissis aged eighteen to ask 10 or 12 guests, the respondent aged seventeen but others from eighteen to twenty-five, to attend their House for a barbecue party, allowed Angelo Parissis to manage the barbecue, could have observed the methylated spirits being placed near the barbecue, provided light beer and food, could have observed if they took the trouble that guests brought stronger liquors to the party, left for some hours, returned late at night when the barbecue had not been used for several hours, again had the opportunity to see that stronger drinks than light beer had been and was being consumed, had the opportunity to see that some of the guests were significantly affected by liquor, did some clearing up and ascertained that no one wished for more food, then retired to bed and left the guests to their own devices.

69 Considering that the guests were a group of young adults, the answer which in my opinion should be given is that the appellants’ conduct did not involve a reasonably foreseeable risk of injury to the guests as a class or to the respondent as one of them. This is no less the right answer even if the appellants could readily have found if they looked into it that methylated spirits had been used to start the barbecue on the first occasion, but had then been returned to the garage. The possibility that unruly behaviour of some kind might break out could be imagined, but in view of the experience of the evening so far and the state in which affairs were when Mrs Parissis and Ms Madias retired to bed, this possibility should not in the eye of reality be seen to involve a risk of injury which reasonable people in the appellants’ position would have foreseen as likely to occur as a consequence of allowing the party to continue in their absence. Nor does the imaginability of an attempt to restart the barbecue fire, the use of methylated spirits to do so and the outbreak of behaviour in which adult men threw methylated spirits from a bottle on an ignited barbecue bring the appellants within the range of what reasonable people would have foreseen, undemanding as the test of foreseeability is.

70 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.

71 Further address to the Shirt Calculus is not necessary, but I will go on. If it should be supposed that the risk of injury would have been foreseen, the response of reasonable people to that perception is, in my opinion, to do no more than what the appellants did. If they had thought of the subject at all they would have seen that the barbecue fire was out, that no further food was required and that the methylated spirits bottle was back in its storage position in the garage. In my opinion the reasonable response to such a risk was to leave a group of 10 or 12 young adults, with their liquor, to their own devices. That is what practically every adult in Australia would do. It is remote from the realities of Australian lives that the older generation would remain awake or keep an eye every few minutes on younger adults until 2 am or thereabouts although wishing to retire at about midnight. The magnitude of any risk that an event would occur of the kind which did occur, and the degree of probability of its occurring were very slight. Although there was no expense, little difficulty but some inconvenience in maintaining continuing supervision, the occupiers’ conflicting responsibilities were only to themselves. When these matters are balanced out I regard it as altogether clear that the standard of response of reasonable people in the position of the appellants was the response which they made. I have not addressed whether the reasonable response would have been to intervene in some way to see that those affected by alcohol did not drive. The facts of this case do not require that situation to be considered, and its problems cannot be easily answered.

72 The appellants were not in any relationship with the guests which has been or should be established by judicial authority to impose any special duty or responsibility for the safety of the guests. I would categorise the appellants as occupiers, but not as Social Hosts, in assigning a category to their relationship with guests including the respondent. The Social Host who invited guests to the party, and was present as the host, was Angelo Parissis. There is no established relationship of Social Host and guests in Australian negligence law, so the distinction is of no real importance. The ordinary social controls which, with a high degree of effectiveness, inhibit irresponsible behaviour were present in the form of a group of other adults who were known to John Karas, who were in a position to observe and warn, and who did so. The appellants were in no better position to observe and warn than the young adults who were present; and indeed John Karas was in just as good a position to understand and avoid the danger, even if unwarned, as anyone else who was present. His conduct went past a limit of grossly careless, irresponsible and criminal behaviour control of which by others is not required by the law of negligence.

73 The Trial Judge referred to a number of decisions of authority, and although his Honour’s observations are not direct and plain, I understand from his Honour’s reference to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 556 dealing with the duty of a person who takes advantage of control of premises to introduce a dangerous substance to carry on a dangerous activity or to allow another to do so, that his Honour regarded the introduction of methylated spirits onto the premises as giving rise to a non-delegable duty to control the methylated spirits and its use by anyone on the premises.

74 In Burnie Port Authority v. General Jones Pty Ltd the principal judgment (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ), after a very extensive review of the law relating to liability for fire and the doctrine in Rylands v. Fletcher (1868) LR 3 HL 330, expresses these conclusions at 556-557, with qualifications not presently important relating to the law of nuisance and trespass:

Rylands v Fletcher

75 Further observations at 558-559 deal with what their Honours said in relation to a dangerous substance and to a dangerous activity.

In the context of the ordinary law of negligence, the character of “dangerous'’ is not confined to those classes of things, such as poison, a loaded gun or explosives, which are “inherently dangerous'’ or “dangerous in themselves'’.

76 It is far from clear how the Trial Judge intended to proceed on the basis that the appellants had a non-delegable duty to control the methylated spirits. There has been no suggestion at any point that the appellants were vicariously liable for any conduct of Angelo Parissis, and hence the question whether or not the duty of care was delegable or non-delegable does not appear to be important. If the Trial Judge’s intention truly was to ground liability on Burnie Port Authority v General Jones Pty Ltd at 556 on the view that the appellants took advantage of their control of premises to introduce a dangerous substance, to carry on a dangerous activity or to allow another to do so, it would have been an error to proceed on that basis because the small container of methylated spirits in the appellants’ premises, of the size usual when methylated spirits are used for domestic purposes such as cleaning, was not a dangerous substance for the purpose of the principles there referred to, or of any special principles relating to a duty of care or to a duty of care being non-delegable. To take a phrase from the speech of Lord Sumner in Weld-Blundell v Stephens [1920] AC 956 at 985 and apply it to a bottle of methylated spirits rather than to a defamatory letter: “If let alone, it was quite harmless…” It was only dangerous if the methylated spirits bottle was taken out of storage in the garage and used in an obviously irresponsible and dangerous way. A domestic supply of methylated spirits cannot be fitted into Latham CJ’s list of chattels dangerous per se, in Smith v Leurs at 259, “…explosives, poisonous chemicals, loaded guns, tigers, &c” and as the Chief Justice said (259) of a shanghai, “A shanghai does not go off ‘of itself’ by accident—as may happen with a loaded gun. It requires deliberate intention before it can produce any effect.” I am not considering the storage or the use of a large quantity of methylated spirits or other inflammable liquids. Domestic use of small quantities of inflammable liquids such as methylated spirits, dry cleaning fluid or petrol does not invoke the Rylands v Fletcher doctrine or its successor doctrine, because such liquids in small domestic quantities are not inherently dangerous substances to which those doctrines relate.

77 Further consideration can be given to a passage in Burnie Port Authority v. General Jones Pty Ltd dealing with the criteria of what is dangerous for the purpose of occupier’s liability. After referring to the speech of Lord Atkin in Donoghue v. Stevenson [1932] AC 562 at 595-596, their Honours went on (and I add some emphasis):

It suffices for that purpose that the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it.

78 In stating the criteria of what is dangerous for the purpose of occupier’s liability their Honours directed attention to the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur. In the situation of the appellants, the magnitude of the foreseeable risk of an accident happening in relation to the methylated spirits in the garage was extremely slight. They did not know and were not told that methylated spirits were to be used at all, and if for some reason they had thought to inquire (and I do not know of a reason why they should have) they would have found that Angelo Parissis took the methylated spirits from the garage, poured them on the heat beads to ignite the barbecue for cooking, and that after an interval, when the cooking fire was well alight, he placed the bottle of methylated spirits back in the garage. The appellants had no reason to think that the barbecue might be reignited later in the evening, or that methylated spirits might be used at all, still less that they might be used in the culpably dangerous way in which they were used.

79 The magnitude of the foreseeable risk of an accident happening in the way in which it did happen was nothing; and the magnitude of foreseeable potential injury if an accident did occur was also nothing, as, when what was foreseeable to the appellants is tested on a reasonable basis, it was, again, not reasonably foreseeable that the barbecue would be relit at all, or, if it were, that methylated spirits would be used in the criminally irresponsible way in which they were used, or in any way other than as Angelo Parissis had used them, that is, pouring spirits on heat beads and then igniting combustible material in the barbecue. It is within the ordinary knowledge and equipment for life of an adult that methylated spirits, even in ordinary domestic quantities, are inflammable and are explosive, and can be dangerous if not used carefully. A domestic supply of methylated spirits, in the order of a litre, stored in a garage is not to be characterised as dangerous in the way to which their Honours first referred in the passage I have emphasised; it is not inherently or of itself likely to do serious injury or to cause serious damage.

80 In my opinion the principles stated in Burnie Port Authority v. General Jones Pty Ltd do not show that the appellants were liable as occupiers, because the methylated spirits were not a dangerous substance; or if this should be wrong, they have not incurred liability, according to the test stated in Burnie Port Authority v. General Jones Pty Ltd, in respect of the presence of methylated spirits on their premises.

81 In my opinion the appeal should be allowed. The Court should make the following orders:

(2) Order that the verdict, judgment and order for costs of the District Court of 1 August 2003 be set aside, and that in lieu thereof there be a verdict and judgment for the defendants with costs.

Suitors’ Fund Act

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Last Modified: 11/29/2004

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Citations

Parissis v Bourke [2004] NSWCA 373

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CITATION:	PARISSIS & ORS v. BOURKE [2004] NSWCA 373
HEARING DATE(S):	07/10/2004
JUDGMENT DATE:	23 November 2004
JUDGMENT OF:	Mason P at 1; Tobias JA at 2; Bryson JA at 11
DECISION:	Appeal allowed with costs.
CATCHWORDS:	NEGLIGENCE- Occupiers liability- Householders allowed their son aged 18 to hold barbecue party attended by guests aged from 17 (plaintiff respondent) to 25- parents did not supervise lighting or use of barbecue – mother specified light beer only and supplied light beer and food but guests brought champagne and spirits – methylated spirits used to start barbecue- after cooking finished about 8pm, bottle replaced in garage- householders present early, went to cinema, returned about midnight and thought everything in order, offered food which was declined and went to bed – about 2:00am attempts were made to reignite barbecue- guest took methylated spirits bottle from garage- several guests poured spirits from bottle onto smouldering barbecue - after several attempts, spirits exploded and fireball injured plaintiff sitting nearby and not participating in re-ignition: consideration of liability of householders - reasonable foreseeability of risk of injury- US and Canadian case law on Social Host Liability- HELD: no reasonably foreseeable risk of injury, householders had no duty of care- award of damages by District Court reversed.
LEGISLATION CITED:	Crimes Act 1900 s.54, s.578A(2) Suitors’ Fund Act 1951
CASES CITED:	Anns v. Merton London Borough Council [1978] AC 728 Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Childs v. Desormeaux 217 DLR (4th) 217 Childs v. Desormeaux 130 A.C.W.S. (3d) 1228 City of Kamloops v. Nielsen [1984] 2 SCR 2 Cole v. South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52 Cooper v. Hobart [2001] 3 SCR 537 Donoghue v. Stevenson [1932] AC 562 Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993) Graham Barclay Oysters Pty Ltd v. Ryan (2002) 211 CLR 540 Hackshaw v. Shaw (1984) 155 CLR 614 Modbury Triangle Shopping Centre Pty Ltd v. Anzil (2000) 205 CLR 254 Phillis v. Daly (1988) 15 NSWLR 65 R v. D [1984] 3 NSWLR 29 Rylands v. Fletcher (1868) LR 3 HL 330 S v S (unreported NSWCA 17 July 1998) Smith v. Leurs (1945) 70 CLR 256 State of New South Wales v. Godfrey [2004] NSWCA 113 State of New South Wales v. Napier [2002] NSWCA 402 Stewart v. Pettie [1995] 1 SCR 131, (1995) 121 DLR (4th) 222 W D & H O Wills (Aust) Ltd v State Rail Authority; State Rail Authority v T N T Management Pty Ltd (1998) 43 NSWLR 338 Weld-Blundell v Stephens [1920] AC 956 Wyong Shire Council v. Shirt (1980) 146 CLR 40
PARTIES :	Antonio Parissis, Evelyn Parissis and Fiona Jenny Madias - Appellants Jordana Rachel Bourke - Respondent
FILE NUMBER(S):	CA 40925 of 2003
COUNSEL:	B. Gross QC and G. Charteris - Appellants B. Donovan QC and D.E. Baran - Respondent
SOLICITORS:	McMahons, Sydney Keddies, Redfern

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2588 of 2000
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ