CITATION: PARISSIS & ORS v. BOURKE [2004] NSWCA 373 HEARING DATE(S): 07/10/2004 JUDGMENT DATE:
23 November 2004JUDGMENT 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 1951CASES 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 40PARTIES :
Antonio Parissis, Evelyn Parissis and Fiona Jenny Madias - Appellants
Jordana Rachel Bourke - RespondentFILE NUMBER(S): CA 40925 of 2003 COUNSEL: B. Gross QC and G. Charteris - Appellants
B. Donovan QC and D.E. Baran - RespondentSOLICITORS: McMahons, Sydney
Keddies, Redfern
LOWER…
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- AGLC
- Parissis v Bourke [2004] NSWCA 373
- Case
- [2004] NSWCA 373
- Decision Date
CaseChat Overview and Summary
The appeal in *Parissis v Bourke* concerned the liability of householders for injuries sustained by a guest at a barbecue party they hosted. The plaintiff, aged 17, was injured when a fireball erupted from a barbecue that guests were attempting to reignite late at night. The householders had permitted their 18-year-old son to host the party, and while they were present for part of the evening, they left and returned later, believing the party to be in order. The injury occurred when guests retrieved methylated spirits from the garage and poured them onto the smouldering barbecue in an attempt to relight it, causing an explosion.
The central legal issue before the Court of Appeal was whether the householders owed a duty of care to the plaintiff, and if so, whether they breached that duty, leading to the plaintiff's injuries. Specifically, the court had to consider whether the risk of injury from the manner in which the barbecue was reignited was reasonably foreseeable to the householders. The court also considered, by reference to US and Canadian case law, the concept of "social host liability."
The Court of Appeal determined that the householders did not owe a duty of care to the plaintiff because the risk of injury arising from the guests' actions in attempting to reignite the barbecue with methylated spirits was not reasonably foreseeable. The court reasoned that while the householders had taken some precautions, such as supplying light beer and food, the specific actions that led to the injury – the unsupervised retrieval and use of methylated spirits to reignite a barbecue late at night by guests – were not something they could have reasonably anticipated. The court found that the householders had no knowledge of the methylated spirits being used for this purpose and that their departure from the party did not create a situation where such an event was foreseeable.
Consequently, the Court of Appeal allowed the appeal, reversing the award of damages made by the District Court. The householders were therefore not found liable for the plaintiff's injuries.
The central legal issue before the Court of Appeal was whether the householders owed a duty of care to the plaintiff, and if so, whether they breached that duty, leading to the plaintiff's injuries. Specifically, the court had to consider whether the risk of injury from the manner in which the barbecue was reignited was reasonably foreseeable to the householders. The court also considered, by reference to US and Canadian case law, the concept of "social host liability."
The Court of Appeal determined that the householders did not owe a duty of care to the plaintiff because the risk of injury arising from the guests' actions in attempting to reignite the barbecue with methylated spirits was not reasonably foreseeable. The court reasoned that while the householders had taken some precautions, such as supplying light beer and food, the specific actions that led to the injury – the unsupervised retrieval and use of methylated spirits to reignite a barbecue late at night by guests – were not something they could have reasonably anticipated. The court found that the householders had no knowledge of the methylated spirits being used for this purpose and that their departure from the party did not create a situation where such an event was foreseeable.
Consequently, the Court of Appeal allowed the appeal, reversing the award of damages made by the District Court. The householders were therefore not found liable for the plaintiff's injuries.
Orders
Orders of the court
Appeal allowed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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