Australia: Common Law Duty of Care: Not my patron’s keeper: High Court revisits alcohol server responsibility

Last Updated: 3 December 2009
Article by Olivia Dinkha

Not my patron's keeper: High Court revisits alcohol server responsibility

Judgment date: 10 November 2009

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

High Court of Australia1

In Brief

  • The proprietors of licensed premises and licensees do not owe a general common law duty of care to their patrons in relation to the consequences of alcohol served on their premises except in exceptional cases.
  • An inquiry into breach is a prospective one and is separate to the enquiry in respect of duty. It must be made by asking, prospectively, what the exercise of reasonable care required is in response to a foreseeable risk of injury, not by retrospectively reasoning what the defendant could have done to prevent the injury in light of the precise circumstances of the injury.
  • Background

    On 24 January 2002 Shane Scott suffered fatal injuries when the motorcycle that he was riding ran off the road 700 metres from his house. His blood alcohol reading was 0.253 grams per 100 ml of blood and it was common ground that the accident occurred by reason of Mr Scott's consumption of alcohol.

    He had earlier been drinking at the Tandara Motor Inn, Triabunna in Tasmania where he had consumed seven or eight cans of Jack Daniels and Cola since 5.15pm. Between 6.00pm – 6.30pm a rumour had circulated that there was a police breathalyser or speed camera near Mr Scott's home which was situated about 7 kilometres away. An arrangement was made with the Licensee whereby Mr Scott handed over the keys to the motorcycle to the Licensee and the motorcycle was stored in a lockable room. The Licensee understood that Mr Scott would telephone his wife in order to pick him up when he was ready to leave and that the motorcycle would be collected the next day.

    At approximately 8.00pm the Licensee refused further service to Mr Scott and asked for his wife's telephone number so that he could telephone her to collect him. Mr Scott swore at the Licensee and refused to provide his wife's telephone number. Mr Scott asked for his keys to be returned, following which time the Licensee asked Mr Scott a number of times whether he was "right to ride". Mr Scott said that he was and accordingly the motorcycle and the keys were released to him. Mr Scott left the Inn at about 8.30pm shortly after which time he was involved in the fatal accident.

    Mr Scott's wife, Sandra Scott, instituted proceedings in the Supreme Court of Tasmania against the Proprietor of the hotel and the Licensee. The Motor Accidents Insurance Board of Tasmania commenced proceedings against the defendants seeking to recover compensation it had paid to or on behalf of Mrs Scott.

    The plaintiffs in both proceedings alleged that the Proprietor and Licensee owed Mr Scott a duty of care and that they were in breach of their duties of care to Mr Scott.

    Tasmanian Supreme Court

    The trial judge, Blow J, held that the Proprietor and the Licensee did not owe Mr Scott a duty of care. However, the trial judge held that in the event that the Proprietor and the Licensee owed Mr Scott a duty, they were in breach of such a duty and that that these breaches were causative of Mr Scott's death.

    Mrs Scott and the Motor Accident Board appealed to the full court of the Supreme Court of Tasmania.

    Full Court of the Supreme Court of Tasmania

    The majority of the Supreme Court (Crawford CJ dissenting) overturned the trial judge's decision, finding that the Proprietor and the Licensee owed Mr Scott a duty of care. The majority of the Supreme Court formulated the duty as one to take reasonable care to "avoid Mr Scott riding" the motorcycle whilst he was affected by alcohol so that he had a reduced capacity to do so safely. The Court found that there was breach of this duty and that the breach was causative of Mr Scott's death.

    High Court Decision

    The High Court overturned the decision of the majority of the Supreme Court and found for the Proprietor and the Licensee on the basis that the plaintiffs had failed to establish the existence of a duty, secondly that even if there was a duty there was no breach of this duty, and finally that even if there was breach of a duty which was owed, that the breach was not causative of Mr Scott's injuries.


    For the plaintiffs to succeed it was necessary for them to prove that if the Licensee had complied with his alleged duty to telephone Mrs Scott that then this would have prevented Mr Scott's death.

    Mrs Scott gave evidence that if the Licensee had telephoned her and requested her to collect her husband at 8.30pm she would have done so. The High Court held that it could not be established on the balance of probabilities that the Licensee could have called Mrs Scott as there was no evidence that the Licensee knew or could have acquired Mrs Scott's mobile or home telephone number from Mr Scott. The Licensee had asked Mr Scott for his wife's telephone number but he responded with aggressive intent. Moreover, even if the Licensee had discovered Mrs Scott's telephone number, it was not possible to conclude that she would have arrived at the hotel in enough time to forestall her husband's departure from the hotel. Lastly, there was no evidence to suggest that even if Mrs Scott had come to the hotel after receiving a call that Mr Scott would have gone home in her car. As such, the plaintiffs could not establish that if the Licensee had complied with the alleged duty that the accident would not have occurred.

    Breach of Duty

    Evans J in the Full Court majority found breach of duty in three respects: 1) a failure by the Licensee to ring Mrs Scott; 2) the licensee's failure to "deflect", "delay" or "stall" Mr Scott's departure; and 3) the Licensee's failure to have "manifested some resistance to the return of the motorcycle".

    The plaintiffs essentially only pursued the licensee's failure to telephone Mrs Scott before the High Court. The High Court held that the failure to telephone Mrs Scott was unsound on the basis of the arguments made in respect of causation, namely that the licensee had no means of ringing Mrs Scott.

    The second and third breaches were rejected on the basis that any attempt to deflect, delay or stall Mr Scott would have been ineffective. Moreover, to detain Mr Scott, the keys or the motorcycle would have been unlawful and would have denied Mr Scott's desire to exercise his legal rights to possession of the motorcycle. The High Court pointed out that one of the flaws in respect of the second and third breaches rested in the belief that "all that matters in assessing the question of breach is what the person allegedly in breach of duty thought at the time". The High Court held that as the enquiry into breach rests on what a reasonable person in the circumstances would do, factors other than those which actually occurred to the person whose breach was alleged against, are also relevant.

    Tennett J, who agreed with Evans J, added two further breaches: 4) the Licensee could have refused to return the motorcycle and 5) the Licensee could have driven Mr Scott home himself. The fourth alleged breach was not pursued but was rejected by the High Court on the basis that if the Licensee refused to hand over the motorcycle he would have been committing an illegal act. The plaintiffs refused to support the fifth alleged breach but in any event the High Court held that there was no evidence that Mr Scott would have submitted to being driven home by the Licensee. The High Court also queried whether it would have been reasonable for the Licensee to have driven the return journey of about 15 kilometres.

    Duty of Care

    In the High Court the plaintiffs advocated a narrower version of the duty found by the majority of the Supreme Court. They submitted that the Licensee and the Proprietor owed "a duty to take reasonable care selected prospectively by Mr Scott and the Licensee as the means by which Mr Scott's interests in not facing the risks of driving the motorcycle while intoxicated could be protected". The plaintiffs submitted that this duty existed by reason of Mr Scott's vulnerability and the Licensee's and Proprietor's capacity to influence events. The High Court rejected that Mr Scott was vulnerable, he was an experienced drinker according to Mrs Scott, and noted that there was no suggestion that the Licensee was pressing drinks on him.

    The High Court clarified that even if a Licensee sometimes owes a duty to take reasonable care in relation to the future service of alcohol or the consequences of having served it in the past, no duty could arise in Mr Scott's case for a number of reasons including the fact that the duty contended was narrow, in that it selected a particular chain of circumstances that lead to Mr Scott's death and the duty submitted was one to prevent that particular chain of circumstances from occurring. The existence of the duty was also rejected on the basis that recognition of the narrow formulation would be incompatible with other torts, for example the torts of assault and battery. The duty was also held to clash with the Licensee's duty as sub-bailee to hand over the keys and the motorcycle to Mr Scott and legislative regimes in relation to alcohol.

    The High Court acknowledged that a duty of care on the part of a publican to their customers in relation to the consequences of service alcohol may exist in "exceptional" cases, such as where a person is so intoxicated that they are incapable of rational judgment but the High Court held that the present circumstances bore no resemblance to those cases.


    Confirming Cole v South Tweed Heads Rugby League Football Club Ltd2, for liability to attach to a licensee for the consequences of service of alcohol a plaintiff must establish the existence of exceptional circumstances.

    Exceptional circumstances may exist in the case of a patron who is so inebriated that they are incapable of exercising rational judgment or in the cases of intellectually or mentally impaired patrons.

    Outside exceptional circumstances licensees, whilst 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 which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.

    The High Court has made it clear that individual freedom and personal responsibility are overriding factors in placing limits on the duty of care owed by licensees to their customers.

    1 French CJ, Gummow, Hayne, Hayden & Crennan JJ

    2 [2004] HCA 29

    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.

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