Australia: Liability of Liquor Licensees in Negligence

Our Shout
Last Updated: 10 May 2010
Article by Tom Young and Louise Bell

Late last year, the High Court examined the liability of licensees in two important cases alleging claims of negligence. These High Court decisions provide comfort to licensees who have been concerned about an unprecedented expansion of the common law duty of care owed by licensees to patrons. In these cases, the High Court has not only been careful to develop the common law in such a way that is consistent with liquor legislation but also taken a common sense approach to the duty of care owed by a licensee to its patrons.

C.A.L. No 14 Pty Ltd t/as Tandara Motor Inn & Anor v Motor Accidents Insurance Board
C.A.L. No 14 Pty Ltd t/as Tandara Motor Inn & Anor v Sandra Scott
[2009] HCA 47


10 November 2009


On 24 January 2002, Shane Scott went to the bar at the Tandara Motor Inn (Inn) with a mate after work. That afternoon, there was a rumour at the Inn that there was a police breathalyser or speed camera near where Mr Scott lived. An arrangement was made with the licensee of the Inn (Licensee) for Mr Scott's wife's motorcycle, which Mr Scott rode to the Inn, to be placed in the plant room. It was the Licensee's understanding that Mrs Scott would pick up Mr Scott later that night and that the motorcycle would be collected the next day. The Licensee placed the keys to the motorcycle in the petty cash tin.

After Mr Scott's mate left the Inn, the Licensee told Mr Scott that he had had enough and it was time to go home. The Licensee asked for Mrs Scott's telephone number so that she could be contacted to come and get Mr Scott. According to a witness, Mr Scott responded in a verbally aggressive manner, "fired up all of a sudden", became agitated, angry and stroppy.

Soon after, Mr Scott asked the Licensee to return the motorcycle and its keys. The Licensee asked three times whether Mr Scott was "right to ride" and each time Mr Scott answered: "Yes, I'm fine". The Licensee then handed over the keys and Mr Scott drove off at approximately 8.30pm. Mr Scott ran off the road about 700 metres from home and suffered fatal injuries. It was common ground that the accident resulted from his ingestion of alcohol. His blood alcohol reading was 0.253g per 100mL of blood. He had drunk seven or eight cans of Jack Daniels and cola at the lnn from 5.15pm onwards.

Both Mrs Scott and the Motor Accidents Insurance Board of Tasmania commenced proceedings against the proprietor of the Inn (Proprietor) and the Licensee. At first instance, Blow J of the Supreme Court of Tasmania held that the Proprietor and the Licensee did not owe any relevant duty of care to Mr Scott, but that if they did, they were in breach of it, and that their breaches caused the injuries which brought about his death. The majority of the Full Court of the Supreme Court of Tasmania (Crawford CJ dissenting) overturned this decision on appeal concluding that the Proprietor and the Licensee did each owe a duty of care, but agreed with the trial judge that there was a breach of duty causing damage.


The issue for the High Court to determine was whether the Licensee and the Proprietor owed Mr Scott a duty of care. The duty of care was formulated narrowly before the High Court as the duty to take the reasonable care chosen by Mr Scott and the Licensee as the way to protect Mr Scott from facing the risks of driving the motorcycle while intoxicated. The relevant means of taking care was to ring Mrs Scott so that she could collect Mr Scott.


The majority (Gummow, Heydon and Crennan JJ) stated that no duty could arise in the circumstances of this case. The High Court considered that the arrangement for the Licensee to store the motorcycle in the plant room was just an informal arrangement instigated by Mr Scott's mate in order to avoid Mr Scott being breathalysed. In particular, the majority found that the arrangement:

  • gave the Licensee no authority over the motorcycle
  • did not deprive Mr Scott of his right of immediate possession of the motorcycle
  • imposed no duty on the Licensee to ring Mrs Scott
  • was left open to Mr Scott to terminate if he wished, and
  • was both gratuitous and at will.

The majority also considered that finding a duty of care in the circumstances would lack of legal coherence with:

  • other torts (such as assault and battery)
  • the law of bailment, and
  • legislative regimes in relation to alcohol.

Referring to the words of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody (2001) 207 CLR 562 at 576 [42], the majority decided that to conclude that the law of negligence created a duty in the circumstances of this case, "would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms.

The majority noted that judges who have generally opposed the creation of duties of care on the part of publicans to their customers in relation to the consequences of serving alcohol have left open the possibility that the duties may exist in "exceptional cases". The majority suggested that an exceptional case may include where "a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises" (South Tweed Heads Rugby League Football Club v Cole (2002) 55 NSWLR 113 at 146 [197] per Ipp AJA). At first instance, Blow J thought that it would be reasonable to also make exceptions for intellectually impaired drinkers, drinkers known to be mentally ill, and drinks who become unconscious (Scott v CAL No 14 Pty Ltd (2007) 17 Tas R 72 at 84 [37]). The majority said that the circumstances of this case bore no resemblance to the exceptional cases and was not an exceptional case in any sense.

At paragraph 52, the majority was careful to explicitly point out that the reason the Court of Appeal decision was wrong on duty of case was that:

"...outside exceptional cases, which this case is not, persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequence of the alcohol they choose to consume."

The majority, at paragraph 53, also noted that:

"The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive."

Furthermore, the majority held that even if there was a duty of care:

  • it was not breached, and
  • it had not been shown that the accident would have been prevented if the Licensee had complied with the alleged duty.

French CJ, agreeing with the majority, noted that the resolution of the question of duty of care in the future will likely require consideration of the liquor licensing laws and closer consideration of the civil liability statutes of the relevant State or Territory.

Adeels Palace Pty Ltd v Moubarak
Adeels Palace Pty Ltd v Bou Najem
[2009] HCA 48


10 November 2009


The appellant, Adeels Palace Pty Ltd (Adeels Palace) carried on a reception and restaurant business at premises in Punchbowl, New South Wales. On 31 December 2002, Adeels Palace was open for business and many people attended to celebrate New Year's Eve. At about 2.30am on 1 January 2003, a dispute on the dance floor escalated, and came to involve a fight between one of the respondents Mr Anthony Moubarak and a Mr Danny Abbas. Mr Abbas left the premises and returned with a gun. Mr Moubarak was shot in the stomach and the respondent Mr Antoin Bou Najem was shot in the leg.

Mr Moubarak and Mr Najem each brought proceedings in the District Court of New South Wales against Adeels Palace claiming damages for personal injury. Each alleged that they had suffered injury as a result of Adeels Palace's negligence in not providing any or any sufficient security during the function on New Year's Eve 2002/2003. In the District Court, each plaintiff obtained judgment for damages. Adeels Palace appealed to the Court of Appeal of New South Wales and that Court dismissed the appeal. By special leave, Adeels Palace appealed to the High Court.


The live issues in the case of each, at trial, on appeal to the Court of Appeal and the High Court were whether:

  • Adeels Palace owed each a duty of care to prevent harm of the kind suffered
  • whether that duty had been breached, and
  • whether the breach was a cause of the damage suffered.


In this case the High Court considered provisions of the Civil Liability Act 2002 (NSW) (Civil Liability Act) and the Liquor Act 1982 (NSW) and stated at paragraph 22:

"It is against this statutory background that the question of duty of care must be considered, not for the purpose of developing the common law by analogy with statute law, but to ensure that the imposition of a common law duty of reasonable care of the kind now in question would not run counter to the statutory requirements imposed on licensees in all Australian jurisdictions."

According to the High Court, in the circumstances reasonably contemplated before Adeels Palace opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each respondent a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The High Court noted that this duty was consistent with the duty imposed by statute upon the licensee and which was a duty enforceable criminal processes.

In relation to whether the duty was breached, the High Court observed that the absence of consideration at trial of the matters prescribed by the Civil Liability Act may have been reason enough to conclude that the question of breach of duty was not determined properly by the trial judge. However, the High Court decided that it was not profitable to examine that issue further because resolution of the issue of breach would necessarily depend only upon the evidence that was led at trial.

Instead, the High Court thought it desirable to consider the question of causation and found that the negligence found against Adeels Palace was not shown to have been a cause of the injuries suffered by the plaintiffs. In considering the issue of causation, the High Court observed that the evidence at trial did not show that:

  • the presence of security would have deterred the re-entry of Mr Abbas, or
  • security personnel could or would have prevented re-entry by Mr Abbas.

The High Court noted at paragraph 47 that:

"There was, however, no basis in the evidence for concluding that security staff at the entrance to the restaurant would have deterred or prevented the re-entry to the premises of a man armed with a gun when later events showed he was ready and willing to use the weapon on persons unconnected with his evident desire for revenge."

Accordingly, the High Court found that the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot, in other words the "but for" test of factual causation was not established. The High Court, at paragraph 57, stated that:

" would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs."

The High Court allowed the appeals, set aside the orders of the Court of Appeal and Supreme Court of New South Wales and entered orders that the appeal to the Supreme Court be allowed with costs, the judgment of the District Court be set aside and its place there be judgment for Adeels Palace with costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Tom Young
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions