The Full Court of the Tasmanian Supreme Court has recently considered the duty of care owed by owners and licensees of licensed premises to patrons who become intoxicated.
In a judgment in January 2009, the Court revisited the principles established by the New South Wales Court of Appeal and the High Court in Cole v South Tweed Heads Rugby League Football Club Limited (2004) (Cole).
Mr Scott had attended the Tandara Motor Inn (the hotel) after work on 24 January 2002. He drank several premixed cans of Jack Daniels and cola. At some point early in the evening, there was a rumour in the hotel that a breathalyser was in the area. It was agreed with the barman, Mr Kirkpatrick, that Mr Scott would place his motorcycle in the storeroom of the hotel and hand his keys to Mr Kirkpatrick. Mr Scott stated that his intention was that when he had finished at the hotel, he would call his wife to collect him.
Around 8pm Mr Kirkpatrick refused further service to Mr Scott and asked him for his wife's telephone number so that he could arrange for her to collect him. Mr Scott swore at Mr Kirkpatrick and refused to provide his wife's telephone number. Mr Scott then asked Mr Kirkpatrick to return the keys to the motorcycle. Mr Kirkpatrick asked him whether he was "right to ride" a number of times. Mr Scott said that he was. The motorcycle and the keys were then released to Mr Scott.
Shortly after leaving the hotel on the motorcycle, Mr Scott collided with a guardrail of a bridge and was killed. He had a blood alcohol concentration of 0.253gms. Mr Scott's widow sued the hotel and Mr Kirkpatrick. She alleged the defendants owed Mr Scott a duty to exercise reasonable care to prevent harm to him caused by intoxication. The Tasmanian Motor Accident Insurance Board also issued recovery proceedings.
In the first instance, the trial judge followed the New South Wales Court of Appeal decision in Cole as authority for the proposition that a publican's duty of care to a customer does not generally require the taking of care to prevent harm caused by the customer's own intoxication. In Cole, the Court of Appeal accepted there may be circumstances where the duty of care of an innkeeper would be extended to require reasonable steps be taken for the protection of an intoxicated person. The Cole decision was appealed to the High Court. The appeal was unsuccessful, with the members of the Court expressing different views about the nature of the duty which might exist.
The trial judge here held that there was nothing exceptional in the facts of the case which warranted a departure from the general rule in Cole. The Tasmanian Court of Appeal overturned the trial judge's decision in the majority judgments of Evans and Tennent JJ. They found that there was a duty of care and that it had been breached. Crawford CJ dissented.
Evans J, whilst approving the principles in Cole, determined that the facts of this case were substantially different. He referred to the fact that this was a small country hotel where there were only a few patrons present during the period when Mr Scott was drinking. Mr Kirkpatrick was the only barman on duty at the time. Mr Scott was well known to Mr Kirkpatrick. His Honour commented that Mr Kirkpatrick must have known that by reason of intoxication, Mr Scott would be at risk if he left on the motorcycle. Mr Kirkpatrick took on a role in relation to the means by which Mr Scott was to leave the hotel by initially agreeing to lock up the motorcycle in the storeroom and by accepting the keys. When Mr Scott changed his mind and decided to ride home, His Honour found that Mr Kirkpatrick had not done enough in resisting Mr Scott's request for the motorcycle to be returned. For example, His Honour suggested that there would have been nothing unusual about Mr Kirkpatrick telephoning Mr Scott's wife to come and collect him nor would it have been unreasonable for Mr Kirkpatrick to have attempted to delay the return of the motorcycle.
Tennent J agreed with Evans J. He was also critical of Mr Kirkpatrick's failure not to take additional steps to prevent Mr Scott leaving on the motorcycle.
The judgment in Mr Scott's caseshould not be regarded as a departure from the general principles laid down in Cole. The factual circumstances in Scott were significantly different. Evans J made it clear that he was not purporting to determine whether a generally applicable duty of care is owed by a commercial supplier of alcohol to a patron. Tennent J specifically stated that the circumstances of the case were very different to Cole. He pointed out that the hotel was in a very small community; the number of patrons present on the night were relatively small and Mr Scott was a known customer who lived nearby. Mr Scott had requested Mr Kirkpatrick to lock his bike away and after that Mr Kirkpatrick had continued to serve him alcohol. He found that once Mr Kirkpatrick had taken possession of the motorcycle, he had a duty of care not to return it to Mr Scott and that he breached his duty of care in doing so.
The defendants have applied to the High Court for special leave.
Scott v C.A.L. Number 14 Pty Ltd trading as Tandara Motor Inn  TASSC 2
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