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 from intoxication.

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 the evening.

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 keys.

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, finding:

  • 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 motorcycle.
  • 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 departing.

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 intoxication.

CAL (No. 14) Pty Limited v. Motor Accidents Insurance Board; CAL No. 14 Pty Limited v Scott (2009) 260 ALR 606

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