September 4, 2020

Copping it on the Chin during COVID-19: What is THE LIABILITY OF THE SOCIAL HOST?

Government regulation and a general reluctance of society to gather in large groups with strangers during COVID, has led to a tendency for social gatherings to occur in the home rather than in the traditional restaurant or pub setting.

At the moment in Queensland a direction from the Chief Health Officer[1] requires that if you are living in a restricted area, up to 10 people can gather at a residence. In an unrestricted area, gatherings of up to 30 people are still allowed.

It is timely then to reflect upon potential liability of the so called “social host” who invites people into their home in circumstances where they know that the consumption of alcohol will be involved.

This may be particularly relevant for parents of year 12 students (and their insurers) who are being “encouraged” by schools to shoulder the load in terms of pre formal functions.

Generally, occupiers of residential premises are held to a lesser standard of care than those operating commercial premises who invite customers onto their property for financial reward.[2]

In Parissis v. Bourke[3] the Plaintiff sued the homeowners after suffering burns at a house party organised by their son. After a considerable period of drinking, one of the young guests had taken to throwing methylated spirits onto a smouldering barbecue after the parents had gone to bed.  A flashback occurred and the bottle exploded and injured the Plaintiff.

The trial judge felt that the combination of youth, alcohol and the presence of a dangerous substance was sufficient to put the Plaintiff a into the position of a "special relationship" with the home owners such that they were required to take reasonable steps to be taken to protect this guest from the actions of other guests.

The Court of Appeal said this overstated the extent of the homeowner's duty particularly when the guest’s conduct bordered on being criminal though this in itself was not a determinative factor. The Court said:

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 …  If behaviour is unpredictable, the harmful outcome of the maturation of the risk may not be reasonably foreseeable.” 

The Court went onto say that even if the injury was foreseeable: -

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 elder generation would remain awake or keep an eye every few minutes on younger adults until 2.00am 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.

So the Court held that the householders were not in any “special relationship” with the guest and there was no established relationship of “social host and guest” in Australian negligence law.[4]  So, unlike a school or a pub, who do owe higher duties to prevent criminal or extremely reckless behaviour, in the context of a function in a private home this will be the sole responsibility of the protagonist and any liability for same will not be foisted upon the homeowner.

What of course does remain is a general duty on the homeowner as occupier of the premises to exercise reasonable care to prevent foreseeable risk of injury arising out of the condition of those premises.

In Sibraa v Brown[5] the Plaintiff tripped over welded wire mesh left lying on the homeowner’s front lawn at night. The Court concluded at [75] that:-

it was not uncommon for householders to leave objects lying on their lawn like a hose, a gardening tool, a child’s toy ... In daylight they will be visible, and many a reasonable householder would take no precautions concerning such objects in case people came to be on his or her lawn (as opposed to front path or driveway) at night. It would be quite a surprise for many householders to be told that reasonable behaviour requires them to clear all obstacles from their lawn before each night fall ... The [occupier] did not fail to take reasonable care by leaving the mesh where it was, and unlit”.

This approach can be contrasted with Hodge -v- Barham[6]. In this case, the Plaintiff, who was 17, went along to a 21st birthday party which was held at the birthday boy’s parent’s house. The homeowners supplied both food and alcohol to the 60 or 70 guests that were present. The parents were around and cleaned up any glass breakages they saw. By about 12.00 am the birthday boy was intoxicated. He was dancing in the outside patio area when he grabbed the Plaintiff for a dance. Unfortunately, he managed to fall on her leading to serious injury when her wrist was lacerated by broken glass on the floor. The Plaintiff sued both the birthday boy and his mother as the homeowner.

Some relevant remarks from the Court as to why there was no duty on the “social host” to prevent unruly actions of third parties included:

  • the homeowner did not have the powers of a licensee under the Liquor Act;
  • the homeowner did not assume responsibility for preventing injury to the Plaintiff;
  • the Plaintiff placed no reliance on any conduct of the homeowner;
  • the Plaintiff was not "vulnerable" to risk of injury from the homeowner’s conduct in the sense of being unable to protect herself from any want of reasonable care on their part;
  • supplying alcohol at the party and thus enabling her son to drink to excess, did not render the mother responsible for creating the risk . The birthday boy, at 21, was responsible for his own conduct when it came to the amount of alcohol he consumed at his birthday party in his own home.

As to the case in pure occupier’s liability the Court said:

  • someone could suffer significant injury by stumbling or falling onto a glass bottle. The homeowner ought to have known this and did owe a duty to exercise reasonable care to remove bottles and glasses left lying on the ground;
  • given that there were a large number of intoxicated young persons in a relatively confined space, the homeowner breached her duty of care by failing to provide tables on which to place glasses, and in not collecting bottles left on the ground on a “regular basis”;

Despite what might be said to be a somewhat onerous duty to impose on the parents, the Plaintiff’s case against the homeowner ultimately failed on causation – the Court concluding that it was not established that providing outdoor tables or regularly removing bottles would have prevented this incident occurring.

So this was a very narrow escape for the homeowner and perhaps the lesson for parents is that the Court will not just allow “carte blanche” at a house party, particularly one where you supply alcohol to a large group of young adults.

In an additional finding that might get homeowners’ insurers thinking[7], the birthday boy was found negligent on the basis that he had breached a duty to his guest to take reasonable care to avoid causing physical injury to her. Whilst he argued this was his 21st so of course he was going to get drunk (though Defence Counsel put it much more eloquently than that – that was the thrust of the submission) the Court found that a reasonable person in his position should not have drunk to the point of such intoxication that they became a danger to other guests.

So if you are planning on putting on a party at your house during the Covid period, you can take some comfort from the fact that:-

(a) there is no category of “social host” recognised in Australia that would render an occupier liable for the criminal acts of a third party on their premises;

(b) the standard of care expected by the court is a lower one than would be expected of a commercial hotel or nightclub;

(c) you do not have to maintain a constant vigil over young adults;

(d) you are not obliged to take everything out of the backyard or wrap all potentially hazardous objects in bubble-wrap.

However, the court will require that you still exercise reasonable care to prevent foreseeable risk of injury. Therefore if there is something particularly hazardous on site like an open excavation or unfilled pool, some alleviating steps might be necessary. Also, you might want to serve alcohol in plastic cups!

In light of the authorities above, it would be interesting to see in the current climate of parties organised via social media and the enhanced risk of large numbers of gate crashers, whether the exercise of reasonable care might now require a homeowner to engage security personnel to be present at a party in the home. No doubt significant questions of causation would arise. Hopefully we have yet not come that far though time will tell.

 

 

[1] made under emergency powers arising from a declared public health emergency pursuant to the Public Health Act 2005 (Qld);

[2] In Dovuro Pty Ltd v Wilkins [2003] HCA 51 McHugh J said:- If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular 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.”

[3] [2004] NSWCA 373

[4] Despite this being a category of "special relationship" in some U.S. jurisdictions;

[5] [2012] NSWCA 328

[6] [2011] WADC 71

[7] Unless they have an intoxication exclusion which is fairly uncommon;