An intoxicated party recovering compensation will always grab a
headline. This case was no exception.
It has been some years since the courts have been called upon to
rule on the liability of an hotelier who serves alcohol to a patron
who is later injured as a result of intoxication. The leading case
in the area remains Cole -v- South Tweed Heads Rugby League
Football Club Ltd where the New South Wales Court of Appeal found
that an hotelier's duty of care to a customer generally does
not require the taking of care to prevent harm caused by the
customer's own intoxication. However, it has also been accepted
that this general rule can be displaced in exceptional
The claimant, Mrs Scott, sought damages against the defendant
hotelier in respect of the death of her husband (the deceased) who
was killed on his motorcycle shortly after leaving the
defendant's hotel, where he had become intoxicated. The
deceased was served alcohol by the defendant hotelier over a number
of hours resulting in him having a blood alcohol concentration of
0.253 grams of alcohol in 100 millilitres of blood. Despite there
being evidence from two persons to the effect that the deceased did
not seem intoxicated, the court found that the hotelier must have
known the deceased was intoxicated and should not drive.
At the time the deceased arrived at the hotel, the hotelier,
with the deceased's approval, had locked the deceased's
motorcycle in a storeroom and had taken possession of the
deceased's keys. Shortly before the deceased left the hotel, he
asked the hotelier for the keys and was given them.
In a 2/1 majority verdict, the Tasmanian Full Court found that
the deceased was owed a duty of care in these exceptional
circumstances and that duty had been breached giving the claimant
an entitlement to damages. The court did not however, dispute the
general principle in Cole's case noted above. Here, unlike in
Cole's case, the hotelier knew the exact amount of alcohol the
deceased had consumed and how the deceased intended getting home.
The court found that the taking of the deceased's keys
transformed the relationship and took it beyond the normal
relationship between hotelier and patron. The court found that the
hotelier was under an obligation in the circumstances to take
reasonable care for the deceased and that would involve refusing
the deceased's request for his keys, even though legally the
deceased had a right to them. Had the deceased responded with a
threat of violence, however, it may have been reasonable for the
hotelier to have given way. He did not. Furthermore, the court
found that the hotelier ought to have contacted the deceased's
wife even though the deceased had declined a previous suggestion
that the hotelier do so.
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Whereas most insurance policies exclude liability arising under contract, insurers can
positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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