D v C [1998] NSWCA 67

DvCc

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, PRIESTLEY JA and BEAZLEY JA 4 March, 17 July 1998

[1998] NSWCA 67

WARNING: Section 578A(2) of the Crimes Act applies to this case: it provides that a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. For this reason the principal parties are identified by letters.

LIABILITY OF A SOCIAL HOST FOR ACTIONS OF A THIRD PARTY — the respondent, a guest at a party hosted by the appellant, was raped by another guest. The respondent claimed damages in civil proceedings against the appellant arguing that he owed her a duty of care. At the trial, conflicting evidence was given by the appellant and the respondent. Murrell DCJ accepted the respondent's account and made findings of fact on which she decided the appellant did owe the respondent a duty of care in the particular circumstances and was liable for the other guest's actions.

American Law Reports 3d Cases and Annotations Vol 10 (1966) at 619-660 American Law Reports 3d Cases and Annotations August 1996 Supplement 98-151 Briginshaw v Briginshaw (1938) 60 CLR 336

Devries v Australian National Railways Commission (1993) 177 CLR 472 Husband v Dubose (1988) 531 North Eastern Reporter 2d Series, 600

Jobe v Smith (1988) 764 P 2d 771 (Court of Appeals of Arizona)

Smith v Leurs (1945) 79 CLR 256

Smith v Littlewood's Organisation Ltd [1987] AC 241

On appeal: the appellant did not challenge the finding of the duty of care but challenged the trial judge's findings of fact on the basis she relied on inferences drawn from insufficient material.

Held:

1. The primary facts were well-founded and fully justified Murrell DCJ's conclusion that the appellant was liable from the point of his visit to the room;