In the February 2009 edition of Legal Directions, Emily Daffy and Shantini Minjoot discussed a decision of the Tasmanian Full Court which, as they foreshadowed, attracted the interest of the High Court.
Shane Scott (the deceased) lived about seven kilometres from the Tandara Motor Inn at Triabunna, in Tasmania, and after arriving at the pub on his wife's motorcycle, he enjoyed an evening drinking there. Some time after he arrived, a rumour circulated there was a police presence in the near vicinity, and another pub patron suggested the deceased put the motorcycle in a lockable room at the pub. The licensee obliged. The deceased intended to leave the bike at the pub overnight, and the licensee would call the deceased's wife to come and pick up her husband when he was ready to go home, and the bike would be collected the next day. The licensee placed the bike in the storeroom, and then put the keys in the petty cash tin.
Later that evening the licensee determined it was time for the deceased to go home, and offered to ring the deceased's wife so she could come and collect him. The deceased refused the offer, quite abusively. The deceased demanded that the bike be released, and that he be given the keys so he could ride home. After asking the deceased three times whether he was in a fit state to ride, and being assured by the deceased that he was, the licensee released the motorbike and the deceased rode off into the night. He ran off the road and suffered fatal injuries. He had a very high blood alcohol reading (0.253).
The procedural history
The deceased's widow sued the proprietor and licensee of the pub, and the Motor Accidents Insurance Board sued the same parties seeking to recover benefits it had paid in relation to the death.
Both plaintiffs essentially contended that the defendants were negligent in serving too much alcohol to the deceased, and in failing to prevent him riding the motorcycle. They contended that the defendants owed him a duty to exercise reasonable care to prevent harm being caused by his own intoxication.
At first instance, Blow J (Supreme Court of Tasmania) held that the proprietor and licensee did not owe any relevant duty to the deceased. The widow, and the MAIB, therefore failed.
On appeal to the Full Court of the Tasmanian Supreme Court, Evans and Tennent JJ (Crawford CJ dissenting) held that the proprietor and the licensee did each owe a duty of care, and entered verdicts for the widow and the MAIB accordingly.
The proprietor and licensee sought and obtained special leave to appeal to the High Court.
The High Court
The High Court unanimously held that the appeal must succeed, because even if there was a duty of care (and the Court found there was not), and even if the duty was breached (and the court found it had not been), the plaintiff had not demonstrated that the breach caused her husband's death.
The significance of the decision is the discussion of the threshold issue of whether there is a duty of care.
The High Court concluded that even if there could sometimes be a duty on a publican to take reasonable care in relation to the future service of alcohol, or the consequences of having served it in the past, no duty arose in this case. The licensee was in a very difficult position. He could not forbid the deceased access to the motorcycle, which was owned by the deceased's wife rather than the licensee. He could not use physical force to prevent the deceased from obtaining the keys to the motorcycle, because had he done so, he would have been liable to prosecution.
He could not prevent the deceased leaving the hotel once he knew the deceased intended to ride the motorcycle, because that could amount to false imprisonment. Although the licensee was responsible for the service of alcohol, it did not undermine the deceased's autonomy and the deceased should bear responsibility for the consequences of his dangerous behaviour.
Therefore, in the circumstances of the particular case, all five judges of the High Court found there was no duty.
To dispose of the appeal, the Court wasn't required to consider whether there was a general duty owed by publicans, but four of the five judges did so anyway. The joint judgment of the majority (Gummow, Heydon, Crennan J, and Hayne J agreeing) held that outside exceptional cases, publicans owe no general duty of care at common law to protect customers from the consequences of the alcohol they choose to consume on licensed premises.
The High Court articulated several reasons for this statement of principle. Constant surveillance of drinkers is impractical, and the expressions 'intoxication', 'inebriation' and 'drunkenness' are as difficult to define as they are to apply when attempting to formulate any duty of care. The Court noted that virtually all adults know that progressive drinking increasingly impairs judgment and the capacity to care for oneself, and assessment of impairment is much easier for the drinker than for the outsider. Consumption of alcohol is legal, and has some positive effects. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal responsibility more fairly to be placed on the drinker than the seller of alcohol.
The High Court noted a further problem of legal coherence where legislation compels a publican to eject a drunken customer from licensed premises, if the tort of negligence requires publicans not to permit the person to drive or to walk along busy roads (and hence requires the person to be detained by some means). In such circumstances, where the customer wants to leave, the publican would have to chose between committing the tort of false imprisonment or battery, and committing the tort of negligence.
The High Court held that it is a matter for parliament to legislate if it be desirable to encourage further interference with the individual freedom of drinkers by publicans. It was not a matter for the Courts.
The judgment provides strong endorsement of the notions of autonomy and personal responsibility which have motivated tort law reform across the country over the last several years, and which find expression in State negligence laws (see for example section 50 of the Civil Liability Act 2002, NSW as to circumstances in which there is no liability; and, for example, section 5 Civil Liability Act 2002 (Tas), section 95 Civil Law (Wrongs) Act 2002 (ACT) and section 47 Civil Liability Act 2003 (Qld) as to a presumption of contributory negligence where intoxicated persons suffer injury).
It's not clear from this judgment when, if ever, exceptional circumstances would warrant the imposition of a duty of care where a drinker leaves licensed premises and comes to harm, or harms someone else. It may be such circumstances exist where the publican is serving intellectually impaired drinkers, drinkers known to be mentally ill, and drinkers who become unconscious (as Blow J considered at first instance).
The majority judges observed that some of the arguments against imposing a duty may have less application where the plaintiff is a third party injured by the drunken patron, but just what that means is difficult to know. A third party drinking in the pub with the drunken driver, who in the exercise of their autonomy chooses to travel home with that driver, may be regarded, vis a vis the licensee, as the author of their own misfortune should the journey home end badly.
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