Australia: Responsible V Irresponsible Serving Of Alcohol – What Duty If Any Does A Publican Have?

Last Updated: 19 February 2009
Article by Peter Ewin

The Full Court of the Tasmanian Supreme Court has recently examined if a duty of care is owed by owners and licensees of a licensed premises to patrons who have become intoxicated at the premises.

1. Background

Mr Scott attended the Tandara Motor Inn ("the hotel") at Triabunna after work on 24 January 2002. At the hotel, he heard rumors about police manning a breathalyser unit in the area. The licensee of the hotel, Mr Kirkpatrick, agreed that Mr Scott could store his motorcycle in the hotel storeroom and believed that Mr Scott would arrange for his wife to collect him later that evening. Mr Kirkpatrick was provided with the keys to the motorcycle for safe-keeping.

Mr Scott arrived at the hotel at around 5.15 pm and commenced drinking at 5.30 pm. He consumed seven or eight cans of Jack Daniels and cola and was refused service at around 8 pm. At that point in time, Mr Kirkpatrick asked Mr Scott for his wife's telephone number so that he could arrange for her to collect Mr Scott. Mr Scott responded angrily, declined to give the telephone number and swore at Mr Kirkpatrick. Shortly after, Mr Scott asked Mr Kirkpatrick for his motorcycle keys. Mr Kirkpatrick asked him whether he was "right to ride" a number of times and Mr Scott maintained that he was fine. Mr Kirkpatrick then released the motorcycle keys and motorcycle to Mr Scott.

Mr Scott left the hotel riding his motorcycle around 8.20 pm. At about 8.30 pm he collided with a guardrail of a bridge and was killed. He had a blood alcohol concentration of 0.253 grams at the time of his death.

2. Trial Decision

Proceedings were brought against the hotel and Mr Kirkpatrick by Mr Scott's widow. At first instance, court decided that there was no duty of care owed by defendants to prevent harm to Mr Scott caused by his intoxication.

The trial judge followed the High Court authority of Cole –v– South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469. In that case, Gleeson CJ and Callinan J held that there was no general duty to take reasonable care to protect patrons against risks of physical injury resulting from consumption of alcohol. However, it was also noted that there may be exceptional cases in which the supplier of alcohol may come under a duty to take reasonable care to protect such persons. The trial judge found that this was not an exceptional case where a duty of care should be inferred.

3. Appeal Decision

The Full Court of the Tasmanian Supreme Court overturned the trial judge's decision 2:1. Evans and Tennent JJ found, in separate judgments, that there was no general duty of care owed by hotels, but in the specific circumstances of this case, a duty should be imposed on Mr Kirkpatrick and through him the hotel. Crawford CJ dissented.

Evans J distinguished the facts of this case from those in Cole. Evans J reasoned that the irresponsibility displayed by Mr Scott in asking for the keys to the motorcycle soon after he had responded aggressively at the proposition of telephoning his wife must have "compounded Mr Kirkparick's concern about the level of Mr Scott's intoxication." His Honour found that "a reasonable person in the position of Mr Kirkpatrick would have foreseen that if he failed to do something to deflect Mr Scott from riding the motor cycle from the hotel that night, there was a risk that Mr Scott would suffer injury and that risk was not far-fetched or fanciful". Furthermore, Mr Kirkpatrick was in a position where he could have delayed Mr Scott's departure because he had the keys to the storeroom and the motorcycle. His Honour stated that "[p]lainly, as with any relationship that gives rise to a duty of care, the scope of the duty that arises from the relationship between a hotelier who provides alcohol and a patron, may be extended by the particular circumstances of the case".

Tennent J also distinguished the circumstances of the case from Cole. His Honour noted that "there can be no doubt, based simply on what he served Mr Scott, that Mr Kirkpatrick must have known, when he eventually refused service, that Mr Scott was over the legal limit to drive, and should not have been doing so." Tennent J went on to state: "Mr Kirkpatrick made a conscious decision to hand over both the bike and the keys knowing Mr Scott was inebriated and having stored his bike to protect against the eventuality of Mr Scott driving in that condition."

Crawford CJ in dissent found that Mr Kirkpatrick had done all that he reasonably could do in the circumstances. Mr Kirkpatrick had offered to ring Mrs Scott but, as this offer was rejected, no duty of care requiring Mr Kirkpatrick to do any more than he did should be imposed by the court.

4. Conclusion

While there is no general obligation to prevent inebriated patrons leaving and potentially harming themselves, this case indicates that there are circumstances in which owners and licensees of licensed premises can be held responsible for patrons who become intoxicated at the premises.

The defendants have applied to the High Court for special leave.

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.

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”

Mondaq Advice Centre (MACs)
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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.