The smell of sausages and onions cooking on a barbecue is common in suburbia, at sporting clubs, and even in shopping centre car parks.
But how familiar are you with your old four burner barbecue? Would you be prepared to pay $1 million to someone who burned themselves using it?
In February this year, the Full Court of the Supreme Court of Tasmania heard the appeal in Port Sorell Bowls club Inc v Dann to consider whether Mr Dann’s award of over $1 million for his burnt hand should be reduced further for his own negligence.
The Appeal Court’s Justice Pearce sets out the circumstances of the injury:
“On 17 November 2015, the club was catering for about 60 people for a “barefoot bowls” or “corporate bowls” evening and (Mr Dann) was asked if he would help cook a large quantity of sausages. The club’s gas barbecue was an unsophisticated four burner barbecue. A makeshift method to collect the fat from the barbecue involved a ceramic mug positioned out of sight underneath the barbecue plate. Soon after (Mr Dann) began cooking the sausages, the mug overflowed and the fat inside it caught fire. (Mr Dann) turned off the gas, but the contents of the mug remained alight. (Mr Dann) tried to move the mug which was sitting on a bracket. As (Mr Dann) moved the mug, it caught on the upturned corners of the bracket and the fat spilt, severely burning his right hand.”
Anyone who has operated or cleaned a barbecue will be thinking, “that could have been me”.
At trial, Mr Dann proved Port Sorell Bowls Club Inc was negligent and had breached its duty to him by failing to take appropriate steps to minimise the risk of injury from a fat fire, but his damages were reduced by 15% for his own negligence. The Bowls Club appealed, arguing 15% was too low. Mr Dann cross-appealed, arguing 15% was too high.
Mr Dann argued that he was unaware of the existence of the ceramic mug under the barbeque plate until it caught fire. When he inspected the flaming ceramic mug (which was the source of the fire), he was worried it could overheat and explode, injuring small children who were drawn to the commotion. Deciding he had to act quickly in the ‘heat’ of the moment, he wrapped his hand in a paper towel to give some protection from the flames and reached under the barbecue to quickly remove the ceramic mug. Unfortunately, it caught on the lip of a bracket and spilled the burning fat onto his hand.
The Court of Appeal looked at the trial judge’s findings of contributory negligence:
“The Plaintiff misjudged the situation, he failed to make observations which could have been made. He did not note the turned-up corners of the tray. His evidence was “I knew I could get it out safely and put it on the ground without burning”. He failed to observe the configuration of the tray as a potential obstacle in removing the mug… His behaviour must be judged by reference to the exigencies of the moment. In judging his failure to observe the turned-up corners of the tray as he acted to remove the mug, I find that his observations were limited to a degree by the paper towel wrapped around his hand. He was aware that he had not looked closely at the mug and its surrounds. He gave evidence that before he tried to retrieve it, he looked at it for just a few seconds.… He was expecting some resistance and hindrance. This could have resulted in a spillage or a splash.”
Justice Pearce of the Appeal Court agreed with the trial judge and ruled:
“There was a significant probability of serious harm. Although there were reasons for his decision to attempt to remove the mug, a reasonable person in the same circumstances would not have regarded the exigencies of the situation as so overwhelming or urgent as to sufficiently explain (Mr Dann’s) decision to expose himself to such risk of injury. The trial judge was correct to find that he should have taken greater stock than he did before exposing himself to such risk. His actions in attempting to remove the mug went beyond misjudgement and amounted to a failure to take reasonable care for his own safety, and contributed to his injury.”
The Court of Appeal noted the trial judge’s finding that, when compared to the Bowls Club’s negligence, Mr Dann’s negligence “was not significant” and did not disturb the finding of the 15% reduction for contributory negligence.
Important Dad tip: Next time you grab the tongs at a social barbecue, check the drip tray!
