Tuesday, November 30, 2004

NSWCA says something sensible

A recent NSWCA case confirms a tendency that we at the Branch have noticed among the NSW judiciary: first, the District Court -- usually an ADCJ -- will come up with some crank theory about why all defendants are liable in all circumstances whatsoever; second, the Court of Appeal will unanimously reverse, saying "What were you thinking!"

This has now happened in Parissis v Bourke [2004] NSWCA 373 (23 November 2004). The successful appellants/defendants were the parents of a young adult who had a social barbeque at their premises. After the parents retired for the night, certain inebriated (adult) guests caused an explosion as they attempted to relight the barbeque with methylated spirits. Another guest was injured in the process, and successfully sued the parents for their failure to supervise, which was said to have caused her injuries.

In reversing, the NSWCA drew attention to the fact that the alleged duty was (a) to supervise or control third parties, (b) that those third parties were adults, and (c) that the conduct in question was quasi-criminal.

Tobias JA noted that present-day community 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.

Bryson JA gave the leading judgment, in which he remarked that

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.

Regarding the issue of foreseeability (for breach purposes), his Honour remarked that

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.