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)  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 :
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.