More duty to restrain drink drivers

By Legal Eagle

I 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 drunken patron (Mr Scott) died after his motorcycle crashed, and his wife sued the licensee for failing to restrain him. A majority of the Full Court of the Supreme Court of Tasmania found that a licensee did have a duty to restrain a drunken patron from driving home. I mentioned in the post that the licensee was appealing to the High Court. The High Court has just handed down judgment in C.A.L. No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47, in which the court reverses the Full Court’s decision.

The primary judgment is that of Gummow, Heydon and Crennan JJ. In order to find that a person owes a duty of care in negligence, it is necessary to establish that first, there is a duty of care owed to the injured person, secondly, that the duty of care was breached, and thirdly, that the breach of duty caused the injury. (It’s more complicated than that, but I’m reducing it to bare bones). The primary judgment went through each of the requirements in reverse order (i.e. causation, breach then establishment of duty).

The primary judgment found that even if there had been a duty of care, the licensee’s alleged breach could not have been said to have caused the death of Mr Scott because there were just too many uncertainties. The licensee had attempted to elicit Mr Scott’s wife’s phone number from him, but he had become aggressive and unpleasant, and explicitly told the licensee not to ring his wife. There was no evidence that the licensee knew the phone number, and even if he had gotten it, there was no guarantee he would have been able to catch Mrs Scott. It seems she left the house to look for her husband at about the time her husband set out for home. Finally, there was no guarantee that even if the licensee had called Mrs Scott that he would allowed her to take him home.

The primary judgment then proceeded to consider the question of whether there had been any breaches of duty by the licensee. The majority of the Full Court had identified five possible breaches in total:

  1. Failure to ring Mrs Scott
  2. Failure to “deflect” Mr Scott from riding the motorcycle
  3. Failure to  “delay” Mr Scott from riding the motorcycle
  4. Handing over the motorcycle when Mr Scott requested it
  5. Failure by the licensee to drive Mr Scott home himself

In regards to the first breach, the primary judgment found that there was no way for the licensee to ring Mrs Scott, as discussed in the context of causation, and thus this could not be a breach. In any case, the court noted that there had been an earlier compliance with any alleged duty when the licensee had offered to ring Mrs Scott.

In regards to the second and third breaches (failure to “deflect” or “delay” Mr Scott from riding the motorcycle), the primary judgment noted at [24]:

The second and third alleged breaches involve the difficulty that deflecting, delaying or stalling Mr Scott, apart from the deception which it would probably require and which itself might have irritated Mr Scott, could not have lasted very long. If it lasted for any length of time, it would have involved non-compliance with Mr Scott’s desire to exercise his legal rights to possession of the motorcycle. It would be unlikely, given Mr Scott’s mood, that the Licensee could maintain a posture of open non-compliance for long, for a point would soon have been reached at which any manifestation of resistance by the Licensee to returning the motorcycle would involve the actual commission of a tort in refusing possession and would provoke Mr Scott into an attempt to vindicate his rights by self-help.

Mr Scott had a legal right to demand possession of his property, and the licensee would not have been able to delay long without either committing a tort or risking exposure to physical harm.

In relation to the fourth breach, where it was suggested that handing over the motorcycle was itself a breach of duty, the primary judgment curtly noted at [27]:

…counsel for the Board and Mrs Scott correctly declined to defend what Tennent J said. If the Licensee had done that, he would have been committing an illegal act.

Well said, that Court. The licensee had no legal right to refuse to hand over Mr Scott’s property.

Finally, the Court said that it was not reasonable to suggest that the licensee should leave his pub alone for 15 minutes while driving Mr Scott home. In addition, Mr Scott had refused numerous offers of lifts from his friend and his friend’s wife, so it was unlikely he would have submitted to the licensee giving him a lift home.

Then the primary judgment considered the issue of whether there was a duty at all. The duty alleged before the High Court was as follows (at [32]):

…a duty to take the reasonable care selected prospectively by Mr Scott and the Licensee as the means by which Mr Scott’s interests in not facing the risks of driving the motorcycle while intoxicated could be protected. The relevant means of taking care was to ring Mrs Scott so that she could collect Mr Scott. Counsel for the Board and Mrs Scott defended the Full Court majority’s finding that the duty – or at least that more qualified version of it – existed by referring to Mr Scott’s vulnerability and to the capacity of the Proprietor and the Licensee to influence events.

The primary judgment rejected the characterisation of Mr Scott as “vulnerable”, noting that he was a seasoned drinker who did not appear appreciably drunk. Secondly, the judges noted that the licensee was not pressing drinks on Mr Scott, and indeed, stopped serving drinks to him. They did not rule that a duty of care may sometimes arise for a publican to take reasonable care in relation to serving more alcohol, or in relation to what has already been served, no duty arose in this case.

The primary judgment noted that the agreement for the motorcycle to be stored away had not been initiated by Mr Scott, but by his friend, Mr Kube. The intention was to stop Mr Scott from being breathalysed, not to stop him from being injured or killed. The arrangement did not deprive Mr Scott of his immediate right to possession of the motorcycle.

The primary judgment also highlights a number of difficulties presented by the suggested duty:

  1. The duty conflicted with Mr Scott’s autonomy and would have required the licensee to act to prevent Mr Scott’s desire to ride the motorcycle home. Mr Scott was not vulnerable in such a way as to require the licensee to breach his autonomy.
  2. The duty was inconsistent with other duties owed by the licensee. So if the licensee was supposed to use physical force in preventing Mr Scott from getting the motorcycle, this clashed with the licensee’s obligation not to commit the torts of assault and battery, and not to commit corresponding crimes.
  3. The duty was inconsistent with the law of bailment. The licensee had a duty as sub-bailee to hand over the keys and the motorcycle to Mr Scott (who was in turn, bailee for his wife). The duty would also clash with s 45 of the Criminal Code (Tas) which gave Mr Scott the right to use force to obtain the keys and the motorcycle.
  4. The duty did not sit well with the licensee’s statutory duties as publican. The licensee did have a statutory duty to refuse Mr Scott service and not to supply him with liquor if he appeared to be drunk, to require him to leave the Hotel, and to take reasonable steps to prevent the commission of an offence – but only on licensed premises. Outside the licensed premises, the licensee had no such powers, and only a police officer would have such powers.

The primary judgment then dealt with the general question of the duty of care owed by publicans to customers. Interestingly, the judgment also deals with the difficulties raised by a Federal legal system. The High Court had previously been evenly split in the case of Cole v Sth Tweed Heads Rugby League Football Club Limited [2004] HCA 29 on the nature of the publican’s duty. Gleeson CJ and Callinan J had held that publicans owed no duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in “exceptional cases”. McHugh J and Kirby J had said that there was such a duty in separate judgments. Gummow and Hayne JJ refused to decide the point. In cases where the High Court is split evenly, the binding authority is the decision from which the case was appealed. In this case, it was a decision of the New South Wales Court of Appeal which held that publicans owed no duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in “exceptional cases”. Strictly speaking, it was not binding on the Tasmanian Supreme Court. However, the primary judgment say at [49]:

Blow J [the trial judge], while not considering the decision of this Court to be binding in relation to duty, did follow the ratio decidendi of the decision of the New South Wales Court of Appeal in Cole’s case, which this Court upheld in the result. The proposition that there was no duty save in exceptional cases was one ratio of that case. It was the duty of Blow J to follow that decision unless he thought it plainly wrong. This was required by the decision of this Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd. He did not think it plainly wrong, and he complied with that duty.

The Full Court did not say Cole was plainly wrong and decline to apply it. It simply distinguished Cole. However, the primary judgment takes the Full Court to task for not saying on what basis it distinguishes Cole. Cole says that there is no duty unless there are “exceptional circumstances”, but the Full Court never distinguished on that basis by outlining any exceptional circumstances.

The primary judgment also distinguishes Canadian authority (which has held that there may be a duty on the part of publicans).

The nub of the decision is at [53] – [55]:

Expressions like “intoxication”, “inebriation” and “drunkenness” are difficult both to define and to apply. The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive. It is difficult for an observer to assess whether a drinker has reached the point denoted by those expressions. Some people do so faster than others. Some show the signs of intoxication earlier than others. In some the signs of intoxication are not readily apparent. With some there is the risk of confusing excitement, liveliness and high spirits with inebriation. With others, silence conceals an almost complete incapacity to speak or move. The point at which a drinker is at risk of injury from drinking can be reached in many individuals before those signs are evident. Persons serving drinks, even if they undertake the difficult process of counting the drinks served, have no means of knowing how much the drinker ingested before arrival. Constant surveillance of drinkers is impractical. Asking how much a drinker has drunk, how much of any particular bottle or round of drinks the purchaser intends to drink personally and how much will be consumed by friends of the purchaser who may be much more or much less intoxicated than the purchaser would be seen as impertinent. Equally, to ask how the drinker feels, and what the drinker’s mental and physical capacity is, would tend to destroy peaceful relations, and would collide with the interests of drinkers in their personal privacy. In addition, while the relatively accurate calculation of blood alcohol levels is possible by the use of breathalysers, the compulsory administration of that type of testing by police officers on the roads was bitterly opposed when legislation introduced it, and it is unthinkable that the common law of negligence could compel or sanction the use of methods so alien to community mores in hotels and restaurants.

Then there are issues connected with individual autonomy and responsibility. Virtually all adults know that progressive drinking increasingly impairs one’s judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider. It is not against the law to drink, and to some degree it is thought in most societies – certainly our society – that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial. As Holmes J, writing amidst the evils of the Prohibition era, said: “Wine has been thought good for man from the time of the Apostles until recent years.” Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. To encourage interference by publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislatures, not courts, and it is a step which legislatures have taken only after mature consideration. It would be paradoxical if members of the public who “may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety”, and for that reason are attracted to attend hotels and restaurants, were to have that desire thwarted because the tort of negligence encouraged an interfering paternalism on the part of those who run the hotels and restaurants.

A duty to take reasonable care to ensure that persons whose capacity to care for themselves is impaired are safeguarded also encounters the problems of customer autonomy and legal coherence discussed above. A further problem of legal coherence arises where legislation compels a publican to eject a drunken customer but the tort of negligence requires the person’s safety to be safeguarded by not permitting the person to drive or to walk along busy roads, and hence requires the person to be detained by some means. Even if the customer wants to leave, the publican is caught between the dilemma of committing the torts of false imprisonment or battery and committing the tort of negligence.

French CJ agreed with the primary judgment on all issues. Hayne J agreed with the primary judgment in most regards, however His Honour did not find it necessary to decide on the issues of breach or causation.

I think the Court’s decision is a good one. It answers all the questions I raised in the previous post about how far we should expect publicans to go in looking after their clients.

(See, I can be nice to the High Court sometimes. Also I’m feeling a lot better, which helps my mood.)

Update:

J.F. Beck, who alerted me to the original case, also thinks it’s a good outcome.

18 Comments

  1. Posted November 13, 2009 at 11:09 am | Permalink

    I think as it was litigated this was probably a reasonable place to draw the line (as an aside, on the completely different topic of ‘what lawyers go do after their degrees’, I went to uni with the spokesperson for the hotels association who spoke on the news supporting the decision).

    I am not as comfortable with the idea that the court can write off ‘intoxication’ and the appearance of it as ‘too hard’, and while it’s interesting to note here that they had stopped serving this man, questions remain to me..

    ..perhaps to be fair, to be construed in the abstract rather than by reference to this pub, which I know no more about.

    I DO think if someone was served until visibly sh*tfaced there are a range of destructive outcomes that are ‘reasonably foreseeable’, even to the ordinary gentleman on the Clapham Omnibus.

  2. Posted November 13, 2009 at 11:14 am | Permalink

    Would I be correct in thinking that the High Court intended for this decision to be never overturned?

  3. Posted November 13, 2009 at 8:40 pm | Permalink

    Looks like the HCA decided to do something about the phenomenon known as ‘creeping tort’. And a good thing too!

  4. Jayjee
    Posted November 13, 2009 at 9:33 pm | Permalink

    I am thrilled by this decision. Why only three months ago, I was set upon by three baboons – security persons – for merely sliding down the balustrade at 4am in an infamous Oxford Street bar, yelling “Yippee” as I did so. Said primates promptly removed my person citing “Responsible Service of Alcohol” and “Occupational Health and Safety Regulations”.

    I think I managed to slur to them, “which one of you is Nanny Nicola Roxon and which one is Fundy Wowser Kevin Rudd, before some kind Samaritan poured me into a taxi out of torts harms way.

    The next thing the HC needs to do is pare back all these implied terms in contracts, so that contracts even vaguely mean what the words say!

  5. sweeney
    Posted November 13, 2009 at 9:37 pm | Permalink

    LE, who do you think wrote the judgement? I’m wondering if it’s Crennan J showing her stuff.
    II’m inclined to think it’s not really in the style of Heydon or Gummow JJ, although from memory Gummow has never particularly been a rugged individualist – on the tort side at least.
    If it is Crennan J, it is a well set out judgement – perhaps, dare i say it, Kirby-esque in form if not spirit. I think that, for all his talk about legal principle, Kirby’s enduring strength was his lucidity.
    Who could possibly miss the old days where everyone in the High Court had to have his say, at length, even if in the end there was a clear majority on the general outcome. If the poor old Tassie full court got confused about High Court precedent, no wonder!
    Also, bravo to French CJ for his aversion for superfluous banging on.

  6. Posted November 13, 2009 at 10:50 pm | Permalink

    I think it’s a bloody good decision and about time.

    Let’s hope it spreads to all those other claims against councils, businesses and individuals when some one experiences the normal expected unexpected results of being alive and walking around.

    I for one would be mightily pissed off (to coin a phrase) if i decided to get in-offensively shitfaced in a pub and some interfering prick like Steve at the Pub decided I needed “caring for”

    otoh it’s his pub and he can invite or un-invite anyone he likes as far as I’m concerned.

  7. John
    Posted November 14, 2009 at 3:42 pm | Permalink

    Great post LE.

    The worm has turned? There is a recent high profile case by a publican brought against some ball catching man thumping dude who damaged the property. The publican is hitting him up for damages. I hope there are more cases like this because alcohol driven bad behavior does seem to be an increasing problem.

    You and SL do an excellent job on this blog. Top quality.

  8. John
    Posted November 14, 2009 at 3:43 pm | Permalink

    Whoops, you too Deus Ex, those pics and comments are great!

  9. Posted November 15, 2009 at 8:58 am | Permalink

    Francis X Holden @8:
    And I’m tired of having to pretend to care about shitfaced shitheads like you.

    [Comment by admin: we strongly suspect that FXH was being funny, and that what we have here is a common or garden case of internet humour fail — similar to the internet humour fails that Mel & SL have had a few times recently. In future, could those seeking to be funny please include a smiley? Just sayin’]

  10. Posted November 15, 2009 at 12:30 pm | Permalink

    All I can say is that Frenchie must be sadly missing Kirby at this time.

    Indeed, what would Mick McHugh have decided?

    We live in interesting times….

  11. Jayjee
    Posted November 15, 2009 at 10:23 pm | Permalink

    I can see SATP’s point. If the publican and/or his customers have passed being patient with an obnoxious garrulous customer then boot her out. But please save us from SATP doing so merely because of nanny State Laws force him to!

  12. Posted November 16, 2009 at 6:47 pm | Permalink

    I’m sure steve would be more offended by a smiley than by a request for an organic soy beer.

    to editor: Steve has supported my point. Many, but not all, people go to pubs to get at least over .05. I can’t for the life of me see why Steve (or his employees) should somehow intuitively know what only a blood test can tell for sure.

  13. Warren K
    Posted September 24, 2014 at 3:29 pm | Permalink

    Reasonable forgeability is only part of the equation. Of course it is a necessary part but it is certainly not sufficient.

    Tortuous considerations regarding personal autonomy and property rights must prevail over such cases regarding negligence.

    It would be interesting if the motorcyclist had injured someone and the injured party sues the court. Surely that too is reasonably foreseeable.

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