The High Court has recently confirmed the Cole
principle, that intoxicated people are legally responsible for
their actions, applies equally to wrongful death claims arising
CAL (No. 14) Pty Limited (CAL) operated the
Tandara Motor Inn where Shane Scott (Scott) was
drinking on 24 January 2002. At some point Scott arranged with the
Inn's licensee, Kirkpatrick, for Scott's motorcycle to be
locked in a store room and the keys to be given to Kirkpatrick on
the understanding that Scott's wife would collect him later in
After drinking for a few hours Scott was refused service and
aggressively declined Kirkpatrick's request for him to provide
his wife's telephone number. Scott demanded the return of his
motorcycle and keys and, after attempts by Kirkpatrick to resist
the request, Kirkpatrick handed over the motorcycle and the
A short distance from home, Scott rode off the road and was
killed. He had a blood alcohol reading of 0.253.
Scott's wife brought proceedings against CAL for damages and
the Tasmanian Motor Accidents Insurance Board also brought
proceedings against CAL to recover sums paid to Scott's wife.
At first instance, it was held that CAL and Kirkpatrick did not owe
a duty of care to Scott but on appeal the Full Court of the Supreme
Court of Tasmania found that CAL and Kirkpatrick did owe a duty,
the duty was breached and that causation was established. CAL and
Kirkpatrick appealed to the High Court.
The High Court allowed the appeal of CAL and Kirkpatrick,
CAL and Kirkpatrick did not owe Scott a duty of care in
relation to the means by which Scott could be protected against the
risks of driving his motorcycle while intoxicated. Among other
things, imposing such a duty would have impinged upon Scott's
autonomy and would also have conflicted with other legal
principles, rights and responsibilities (eg. Scott was entitled to
return of his motorcycle; Kirkpatrick would be committing the tort
of assault if he physically attempted to prevent Scott departing on
his motorcycle). Further, no duty arose from the informal
arrangement between Scott and Kirkpatrick concerning storage of the
Even if there was a duty, no breach of duty had been
established. The primary allegation was the failure by Kirkpatrick
to telephone Mrs Scott but, on the facts, Kirkpatrick could not
reasonably have obtained the telephone number and had complied with
his duty by offering to telephone Mrs Scott.
Even if duty and breach had been established, no causal
connection between Kirkpatrick's failure to telephone Mrs Scott
and the death had been established. Again, on the facts,
Kirkpatrick could not have reasonably obtained the telephone number
of Mrs Scott. Even if it had been obtained, it had not been
established that Mrs Scott could have been contacted in sufficient
time for her to arrive at the Inn prior to her husband
Intoxication provisions in tort reform legislation in many
Australian jurisdictions had already reinforced the principles in
Cole. The High Court's decision here constitutes a
further hurdle to the recovery of damages by intoxicated persons
(and their relatives) where an injury or death is connected to the
CAL (No. 14) Pty Limited v. Motor Accidents Insurance
Board; CAL No. 14 Pty Limited v Scott (2009) 260 ALR
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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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