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involved a claim for damages by the widow of a patron who was
killed in a motor cycle accident whilst driving home from licensed
premises with a blood alcohol reading of 0.253.
Mr Scott commenced drinking at the defendant’s premises at
approximately 5.15pm and around 6.00pm, Mr Scott arranged
for his motor cycle to be placed in the club’s storeroom and the
licensee understood that Mr Scott’s wife would pick him up later
that night. At approximately 8.00pm the licensee told Mr Scott
he had consumed enough and it was time for him to go home
and asked for Mrs Scott’s telephone number so that she could
be contacted to come and get him. Mr Scott forcefully refused
the offer and then went outside and asked the licensee for his
motorcycle and its keys. The licensee asked three times whether
Mr Scott was ‘right to ride’ and he answered that he was fine.
Mr Scott’s widow alleged that the licensee’s failure to insist that he
call her to collect Mr Scott was a breach of duty. However, there
was no evidence that the licensee knew Mrs Scott’s home or
mobile telephone number and the licensee’s previous request for
Mrs Scott’s contact details had been refused with such aggression
to practically preclude any further request being sensibly made.
The High Court noted that even if the licensee had managed
to contact Mrs Scott it could not be inferred on the balance of
probabilities that Mr Scott would have responded meekly to her
arrival and left the hotel with her. The High Court found that
the licensee had complied with its duty once he had made the
offer to contact Mrs Scott and the situation was analogous to the
situation in
Cole
where the club offered her safe transport home.
Consequently, the plaintiff’s claim failed.
The High Court also noted the difficulty for licensees to assess
whether a person is intoxicated in light of the following matters:
• The difficulty in counting the number of drinks served to
a patron.
• Lack of knowledge of how much the drinker has consumed
before arrival.
• The risk of confusing excitement and high spirits with
inebriation.
• The point at which a drinker is at risk of injury from drinking
can be reached in many individuals before those signs are
evident.
The final two decisions highlight the tension between taking
reasonable care for the safety of patrons and the individual
drinker’s responsibility for dealing with difficulties and dangers
arising from alcohol consumption. In
Tandara
, the court observed
that it was a matter more fairly to be placed on the drinker than
the licensee.
The court also noted the further tension between customer
autonomy and protection of customers by noting that if an
intoxicated customer wished to leave, the licensee was caught
between the dilemma of committing the tort of false imprisonment
or the tort of negligence.
Six-pack summary
The following key points emerge from these cases:
• The outcome of each claim will depend upon the individual
circumstances of each claim.
• Although licensed premises are involved in selling
alcohol to their patrons (and potential claimants), the well
known effects of alcohol do not mean that all persons
injured at licensed premises can disown all responsibility
for their actions. Even where liability is established
against licensed premises, the courts are prepared to
make significant reductions for contributory negligence
where there is evidence of extreme intoxication. The
assessment of liability and contributory negligence
requires a consideration of the actions (or omissions) of all
the parties to the claim.
• There will always be tension between the obligations of a
licensee and an individual drinker’s personal responsibility
and autonomy. The High Court has indicated that, in the
absence of legislation, the responsibility is more fairly
placed upon the drinker than the licensee.
• Where a licensee is aware that an incident has occurred,
detailed contemporaneous evidence of the circumstances
of the accident (e.g. the presence of water or debris)
should be obtained. This may provide a critical evidentiary
advantage at trial.
• The assessment of whether a patron poses a threat to
other patrons must be performed
objectively on the basis of what is
reasonably apparent prior to the
incident, not with the benefit of
hindsight.
• Offers to provide or arrange
transport home for intoxicated
patrons may be sufficient to
discharge the premises duty to
take reasonable steps to allow a
patron to get home safely.
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