Duty to restrain drunk drivers

By Legal Eagle

It is easier to impose a duty on someone for something they have actually done than it is to impose a duty on someone for something they have failed to do (the misfeasance/nonfeasance distinction). Nothing illustrates this more clearly than a case where a pub fails to restrain a drunken patron from driving while drunk.

This issue has arisen lately with the case of Scott v C.A.L. No. 14 Pty Ltd (No. 2) [2009] TASSC 2 (hat tip to J.F. Beck for bringing it to my attention). The case arose when Mr Scott, a patron of the Tandara Motor Inn, attempted to drive home on his wife’s motor bike after drinking at the Motor Inn. On the way home, he crashed his motor bike and was killed. His blood alcohol reading was 0.253. Mr Scott’s widow sued the Motor Inn because it continued to serve Mr Scott and because when Mr Scott demanded the keys to his motor bike, the Motor Inn publican provided them to him.

Earlier in the night, Mr Scott had put the motor bike in the Motor Inn storeroom on the suggestion of a friend, and had given his motor bike keys to the publican, who had put them in the petty cash box for safe-keeping. Mr Scott’s friend’s wife had offered to drive Mr Scott home when she picked up her husband, but Mr Scott had declined. Another patron gave evidence that Mr Scott had been fine to start with, but had suddenly become belligerent and unpleasant after a number of drinks. The publican had refused to serve him any further drinks after that. The publican also gave evidence that he had asked Mr Scott for his home phone number so that he could call Mrs Scott to pick her husband up. Mr Scott’s response had been, “if I wanted you to ring my fuckin’ wife I’d fuckin’ ask ya,” whereupon the publican asked Mr Scott not to go crook at him. Shortly after this,  Mr Scott asked for the keys to his motor bike. The publican asked Mr Scott a number of times whether he was “right to ride”, and Mr Scott said that he was fine. So the publican provided Mr Scott with the keys and the motor bike.

The trial judge had followed the authority of South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 to find that 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. Nor was it an exceptional case where a duty should be imposed because of the special facts of the case (a possibility which had been left open by the New South Wales Court of Appeal and the High Court).

The Full Court of the Tasmanian Supreme Court overturned the trial judge’s decision 2:1. Evans J and Tennent J found in separate judgments that there was no general duty on the part of hotels, but that in the specific circumstances of this case, such a duty should be imposed on the publican and the Motor Inn. Crawford CJ dissented. His Honour found that there was no general duty, but that furthermore, an exceptional duty should not be imposed in this case, saying at [30]:

The evidence established that Mr Kirkpatrick was concerned for the welfare of the deceased. He asked if he could telephone his wife to come and get him and he questioned the deceased about his ability to ride. In aggressive terms, the deceased rejected the offer of a call to his wife and asserted that he was “right to ride”. In the circumstances, a duty of care requiring Mr Kirkpatrick to do more than he did, should not be imposed by this Court. The deceased should be treated as solely responsible for his own actions.

Crawford CJ also raised the interesting question as to the legal rights of Mr Scott over his property (the motor bike and the keys). The Motor Inn was the bailee of the motor bike and the keys, but as bailor, there was a question of whether Mr Scott was entitled to demand that the Motor Inn relinquish possession of the motor bike and the keys to him. Technically, if a bailee refuses to relinquish possession of a bailor’s goods upon demand, the bailee is committing trespass. Furthermore, s 45 of the Tasmanian Criminal Code suggested that Mr Scott was entitled to use physical force to regain possession of his property. Crawford CJ noted that the power of a citizen to retain possession of an intoxicated person’s car keys was by no means clear according to Tasmanian law.

J.F. Beck asks the obvious question which arises as a result of this decision:

I’m sure bar staff would like to know how much force can be used to prevent intoxicated patrons driving.

Should we expect a hotel employee to open himself or herself to a potential action in trespass to avoid being liable in negligence? Particularly where the owner of the vehicle potentially has a right to regain his or her property by force? How far does the hotel employee have to go? Do they have to physically restrain the patron, potentially opening themselves to claims of assault and unlawful imprisonment? Do they have to expose themselves to physical risk at the hands of a belligerent and drunken patron?

It seems to me that before deciding whether or not a duty in negligence exists, the law has to decide what the position of hotel employees is with regard to bailment, trespass, assault and false imprisonment. And the law has to consider how far an employee should reasonably go towards restraining a drunken patron and preventing him or her from driving. This is why the law of negligence has historically shied away from finding defendants liable for nonfeasance: it often opens a can of worms.

Apparently the Motor Inn is going to appeal to the High Court. I will be very interested to see whether leave to appeal is granted, and if it is, what the new High Court decides.

11 Comments

  1. Posted January 23, 2009 at 2:38 pm | Permalink

    They should definitely appeal. This is effectively outsourcing the nanny state to each and every one of us – “you all have a duty to prevent other people from doing stupid things”. Also, from a tort point of view, it is effectively placing the exercise of control over another human being, not being an employee or child, within the standard of care of the publican.

    In addition, as you highlight, there is a direct and obvious tension between this apparent obligation to control the behaviour of others, and a raft of other rights – property and personal rights in particular.

    Finally, there is a huge problem with forcing bar staff to expose themselves to possibly violent consequences from angry patrons.

    However, as an alternative – perhaps there might be a duty to phone the police in the circumstances? After all, if we’re asking citizens to make on-the-spot judgment calls about legal rights and responsibilities, we do have a particular group of citizens we have appointed for that very purpose. The police could have shown up, and then lawfully exercised their powers to restrain the plaintiff from riding home (i.e. an imminent criminal act).

    It’s tough. I can understand why it might be said that when someone has given you their keys, if you know they are drunk and give them back you are culpable. But is this a moral or legal type of responsibility? What if they gave you their keys, but only for a limited purpose? The judgment might make more sense if the plaintiff had given his keys to the bar staff and said “don’t give them back to me later on if I’m drunk” – then they would have been able to take some comfort that he had consented to their actions if they didn’t give them back.

  2. Posted January 23, 2009 at 3:34 pm | Permalink

    the question is whether the police will actually respond.

    True – but then, as with other crimes, if they don’t respond then bystanders aren’t responsible if the ‘bad guys’ get away.

    My parents rang the police, and the police simply weren’t interested – they said that if no crime had been committed, nothing could be done.

    Surely drink driving is a crime??

    In any event, in terms of your parents actions they fully discharged their duty in my view! So at least they won’t get sued.

    I find the attitude some people have to drink driving extremely scary. I love a drink as much as the next person… next 10 people combined… but I would never, ever even consider driving, even after just 3-4 drinks.

    I was once first to an accident where a drink driver had crashed into a wall. Despite bleeding from his head from smashing into the windscreen and petrol pouring out of the ruptured fuel tank, he was vainly trying to start the car. Myself and another guy ended up pulling him out of the car to stop him from causing an explosion… but seriously, how can people be that stupid? Sigh.

  3. Posted January 23, 2009 at 6:43 pm | Permalink

    I was thinking of an analogy with Mason CJ’s rather tart comment (paraphrasing the opening lines of The Gallic Wars) that Canada was divided into three parts — those who owed a fiduciary duty, those who were owed a fiduciary duty, and those who would shortly owe a fiduciary duty…

  4. pedro
    Posted January 27, 2009 at 10:04 am | Permalink

    This is the worst kind of duty because the people on whom it is imposed are not really able to pick the bounds of their duty. How on earth is a publican to know when the duty commences? Stupid decision.

    “I guess if you’re pissed, you’re not thinking rationally.”
    Never been pissed then LE?

  5. pedro
    Posted January 27, 2009 at 10:07 am | Permalink

    “I can understand why it might be said that when someone has given you their keys, if you know they are drunk and give them back you are culpable. But is this a moral or legal type of responsibility? What if they gave you their keys, but only for a limited purpose? The judgment might make more sense if the plaintiff had given his keys to the bar staff and said “don’t give them back to me later on if I’m drunk” – then they would have been able to take some comfort that he had consented to their actions if they didn’t give them back.”

    You still have the problem that the earlier instruction is vitiated by the later demand for the keys, and then we get into difficult questions about the intoxication affecting the ability to consent.

    Perhaps pubs should install key safes with time-delay locks.

  6. pedro
    Posted January 28, 2009 at 10:47 am | Permalink

    “But then we realised they could get a sober person to open the box for them.”
    Or hide their keys before they go in. How exactly is a publican supposed to know if somebody is driving home?
    The whole stupid idea requires the commission of one offence to stop another. Those judges should be prosecuted for inciting a breach of the peace. 🙂

One Trackback

  1. By skepticlawyer » More duty to restrain drink drivers on November 13, 2009 at 6:32 am

    […] did a post at the beginning of the year on the liability of publicans to restrain drunk patrons from driving home. To recap briefly: a […]

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