“Dear Sir,
I work in the hospitality industry and religiously read your article in the MIDWEEK NATION. I would like to hear your learned opinion on the matter of the occupiers’ liability, as well as that of the server, if any, in respect of a patron being served with alcohol in a bar/establishment:
•to the point of intoxication; or
•where the patron falls and is injured as a result of his intoxication; or
•where that patron drives away from the bar/establishment and subsequently gets into an accident with a third party resulting in injury to (1) himself and (2) to the third party and the intoxication is the overwhelming contributing factor; or
•where that patron in his intoxicated state exhibits a level of violence and in so doing injures the server or another patron present in the bar at the time;
•What can a bar owner/server/security do legally to prevent a person who has become intoxicated from driving away from the bar/establishment?
•Can an intoxicated patron so prevented from leaving sue on the grounds of unlawful imprisonment?
A few months ago I received the above email.
At this holiday period I think it is an appropriate area of discussion and I would, therefore, use the opportunity of the questions posed to discuss the more general issue of liability of hosts for the actions of their patrons who become intoxicated after the consumption of alcohol. It is an area of liability that has occupied the attention of the Canadian courts to such an extent that “liquor hosts liability” is an acknowledged part of the law of negligence in that jurisdiction.
In STEWART vs PETTIE (1995) the Supreme Court of Canada considered the issue of commercial hosts’ liability in respect of the sale of alcohol.
In that case the material facts were that:
After an evening of dinner and live theatre at the Mayfield Inn, a passenger in a car driven by her brother was seriously injured when he crashed the vehicle after losing control on slippery road conditions. His driving had been appropriate to the conditions.
The driver’s blood alcohol level, however, was well above the legal limit an hour after the accident. He had been drinking throughout the evening and the commercial host was aware of his condition when he left in that the same waitress had served him all evening and had kept a running total of his tab.
The passengers in the car had allowed the driver to drive, notwithstanding the availability of sober drivers in the party. In addition, the injured woman knew how much her brother had had to drink and how he reacted when intoxicated. No evidence was tendered as to what she or the other passengers would have done had the commercial host intervened.
An action was brought against Mayfield Investments Ltd. (among others), who were the operators of the dinner theatre at Mayfield Inn.
The Supreme Court held that a duty of care exists between alcohol-serving establishments and their patrons who are unable to look after themselves after becoming intoxicated. The establishment may be required to prevent an intoxicated patron from driving where it is apparent that he or she intends to drive.
A significant degree of proximity existed here between the commercial host and the injured passenger giving rise to a duty of care between them. The fact that she was in the vehicle driven by the patron rather than the passenger or driver of another vehicle was irrelevant for purposes of duty of care. The duty of care arose because she was a member of a class of persons who would be expected to be on the highway. It is this class of persons to whom the duty is owed.
Commercial vendors of alcohol unquestionably owe a general duty of care to persons who can be expected to make use of highways.
The commercial host here took no steps to ensure that its patron did not drive. The circumstances, however, were not such that a reasonably prudent establishment would have foreseen that the patron would drive, and therefore, should have taken steps to prevent this. The commercial host knew that some of the party were sober and could reasonably assume one of them would drive. Mayfield Investments Ltd. was therefore, not liable.
The above case turned on the fact that there were two sober persons in the party of the intoxicated patron.
It is, therefore, clear that on the appropriate facts, the bar establishment can be held liable for injury to the patron and the third party. The above decision was based on the common law tort of negligence.
As I discuss this topic further, I will examine other aspects, including the position of the English courts and the legal responsibility of owners/operators and employees of bars and restaurants in Barbados. I will also deal more specifically with the questions raised in the email.
•Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. send your email to [email protected].
