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:
... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.
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.