Background to occupational liability
The common law has long recognised that an occupier of premises owes a duty to take reasonable care for the safety of those who enter those premises. That duty arises from the act of occupation. Occupation carries with it a right of control over the premises and those who enter them.
However, the extent of an occupier to take reasonable care for the safety of those on their premises becomes blurred in circumstances where they also hold a license to sell alcohol. This area of negligence has faced a number of legal challenges regarding the responsibility of licensed premises to take care of patrons who have become voluntarily intoxicated. The Courts have noted that the idea of an adult seeking compensation for injuries suffered as a result of their voluntarily intoxication seems to offend the societal policy of free will and personal autonomy. The Courts have also contemplated the commercial interest a licensed premises holds by the presence of intoxicated patrons and what actions (if any) should be taken to prevent patrons from becoming vulnerable to harm once they leave the premises.
To reiterate the basics of negligence, a person will owe a duty of care not to harm another individual if it is reasonably foreseeable that another person could be harmed by their acts (or omissions). There have been a number of cases that test the duty owed by licensed premises to ensure that intoxicated patrons have a safe journey home. However, these cases reveal that the practicalities involved in adhering to this duty make it onerous and difficult to manage. Litigation pursued against licensed premises by patrons who suffer injuries after leaving same revolve around two aspects of conduct, firstly that the premises supplied the patron with alcohol at a time when a reasonable person would have known that they were intoxicated and secondly that the premises allowed the patron to leave its premises in an unsafe condition without proper and adequate assistance.
The requirement of exceptional circumstances
In the Tasmanian matter of Tandara Motor Inn & Anor & Scott an intoxicated patron suffered fatal injuries after he lost control of his motorcycle after leaving a licensed premises. Prior to the fatal incident, the patron had spent several hours drinking at the Tandra Motor Inn (“the Inn”). It is estimated that the patron consumed seven to eight cans of Jack Daniels and Coke at the Inn over a period of approximately three hours. As a regular patron at the Inn, an arrangement had been devised where he would hand over the keys to his motorcycle which would be locked in a storage unit. Further, the patron would then telephone his wife to come and collect him. On the night of the incident, the Inn refused further service to the patron after his consumption of seven to eight drinks. The Inn also asked the patron for his wife’s telephone number so that she could come and collect him. The patron swore at the staff requesting the information and refused to provide his wife’s contact number. The patron also demanded the keys to his motorcycle.
The staff member at the Inn provided him with his keys and asked him a number of times whether he was “right to ride”. The patron said he was and his keys were released to him. The patron left shortly after and was consequently involved in a fatal accident. The deceased’s wife instituted proceedings against the Inn on the basis that they had breached their duty of care to him. The matter proceeded all the way to the High Court which made a finding in favour of the Inn. The High Court considered that the deceased’s wife had failed to establish the existence of a duty of care and further if one was owed, that there had been any breach of this duty.
Whilst the deceased’s wife argued that she would have collected her husband on the night of the incident which would have prevented the fatal accident, the Court did not accept that such actions would have prevented the actions of the deceased. This is because her husband had refused to provide her contact details to the Inn and further there was no guarantee that he would have remained on the premises until she arrived (if she had been called).
In addition, the Court held that the Inn could not have refused to return the motorcycle to the patron as it would have denied his legal right of possession as its owner.
In conclusion, the Court held that outside of exceptional circumstances (such as where a patron is so intoxicated they are incapable of exercising rational judgment or they are an intellectually impaired patron) no general duty of care was owed to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.
Extending the duty
The Queensland matter of Johns & Cosgrove & Chevron Queensland Ltd stretched the duty of care owed by licensed premises to their intoxicated patrons, such that they must ensure that their patrons have a safe journey home. The case outcome which saw a compensatory award of $125,000.00 to a heavy drinking regular who was struck by a car whilst waiting at a bus stop (across the road from a hotel) caused shock waves through the Queensland liquor industry.
The Court considered that a number of circumstances had culminated in the hotel’s negligent contribution to the dangerous situation that caused the patron’s injuries. Specifically, the hotel’s continued service of alcohol to the patron (whilst knowing he would have to cross a busy highway to catch a bus home) and their failure to provide him with a safer, alternative means of transport persuaded the Court that they had breached their duty of care.
To be clear, a premises is not automatically liable for causing a patron to become intoxicated. However, liability will arise if the premises continues to serve an intoxicated patron to the point where they have lost self-control and the premises should be aware that without intervention they will be in a dangerous situation. Accordingly, the decision reiterated the need for staff of licensed premises to ensure that they are fully aware of their duties in relation to the responsible service of alcohol.
Narrowing the duty
However, the NSW decision of Cole & South Tweed Heads Rugby League Football Club highlighted the need for intoxicated patrons to be more responsible for themselves. This matter involved circumstances where a patron became intoxicated after binge drinking free Spumante at a champagne breakfast held at the club. After the free alcohol ran out the patron continued to purchase more alcohol. By 2.00pm, the patron was very intoxicated and the club refused her further service.
By 5.00pm the patron was seen staggering, slurring her speech and “grabbing men”. The club manager tried to make her leave by offering her a taxi or the club’s courtesy bus to take her home. Instead of accepting the ride, the patron chose to verbally abuse the manager. The patron then teamed up with some other individuals who advised the manager that they would “take care of her”. A short time later, the patron left the club and was struck by a four-wheel drive as she walked along a dimly lit road. The matter proceeded all the way to the High Court who determined that the club was not responsible for the patron’s injuries.
Whilst the High Court found in favour of the club there was significant divide between the six Justices as to whether the club owed a duty of care, the extent of the duty and whether it had been breached by the club.
In particular, Chief Justice Gleeson noted the difficulty in ascertaining the extent of a duty arising when an adult individual intends to become intoxicated. This is because the duty then translates into attempts by licensed premises to prevent an adult from acting in accordance with their own intentions.
The Court also observed the practical difficulty involved in requiring a licensed premises to monitor the risks associated with the consumption of alcohol by its patrons. He contemplated circumstances where a bottle of wine was served to two customers at a table. The premises may not know what either customer has consumed prior to purchase, the proportions in which the customers intend to share the bottle or what they intended to do once they finished the bottle. Further, he noted that most customers would not take kindly to being questioned about such matters.
Ultimately, the Court found that the club did not owe a general duty to protect the patron from the consequences of her decision to drink to excess. Whilst the High Court’s decision was eagerly awaited, the Justices remained divided as to whether a general duty of care is owed by a vendor of alcohol to the purchaser in order to prevent them from injury following excessive consumption. Whilst the case provides limited guidance to practitioners, the Justices agreed that if a duty was owed, it was not breached in the circumstances having regard to the club’s offers to provide transport home together with their earlier refusal of bar service.
An uncertain future: no objective test to answer future legal challenges
Whilst there is significant need for coherence in legal principles when addressing any proposal for a new form of duty of care, it is unusual for the common law to subject a person to take reasonable care to prevent another from self-inflicted injury. A duty to take care to protect an ordinary adult person who seeks to become intoxicated is not easy to reconcile with the general rule that people are entitled to do as they please, even if it involves a risk of injury to themselves.
However, other Justices considered that licensed premises ought to be more thorough in their monitoring of patrons’ behaviour. They considered that these premises should cease service of alcohol to patrons if they reasonably foresee they would be at risk of injury. They consider intervention should include a verbal warning to the patron of their intoxication and/or forcible removal from the premises. However, it is important to note that neither of the suggested intervention prevents an intoxicated patron from suffering injury once they have left the premises (as detailed in the above cases).
What is clear from the above is that any attempt to create simplicity in the legal principles governing the responsibility of licensed premises to patrons who choose to become voluntarily intoxicated, only serves to obscure the complexity of the problems that lie in these situations and circumstances.
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