BEFORE I CONCLUDE this series of articles concerning the liability of servers of alcohol to intoxicated patrons, I wish to refer to the common law position in Australia.
The legal position in Australia can be discerned from two decisions of the High Court of Australia. I refer to Cole vs Smith Tweed Heads Rugby League Football Club Limited (2004) and C. A. L. No. 14 Pty Ltd. vs Motor Accidents Insurance Board and Scott (2009).
In the latter case the short facts were that the patron, Scott, left a hotel bar around 8:30 p.m. on his wife’s motorcycle for his home seven kilometres away. On his way he ran off the road and suffered fatal injuries. It was not disputed that the accident resulted from his consumption of alcohol. He had consumed about seven or eight cans of Jack Daniels from about 5:15 p.m. onwards. His wife sued the hotel for negligence.
The licensee who thought that Scott had consumed enough alcohol asked him for his wife’s telephone number so that she could collect him. Mr Scott angrily refused. Mr Scott then asked the licensee for the motorcycle and its keys, which had been placed in a locked store room at the hotel.
After asking Mr Scott three times whether he was “right to ride”, to which Mr Scott said:“Yes, I’m fine!” the motorcycle was handed over to him.
In rejecting the wife’s claim, the High Court, among other things, affirmed the notion of self-responsibility: namely that drinkers are ultimately to be held responsible for their own actions.
Exceptional cases
The court held that outside of exceptional cases persons in the position of the proprietor and licensee of the hotel “owe no general duty of care at common law to customers which requires them to monitor and minimize the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume”.
On the issue of self-responsibility four of the judges of the High Court said: “Then there are issues connected with individual anatomy and responsibility.
Virtually all adults know that progressive drinking increasingly impairs one’s judgement and capacity to care for oneself. Assessment of impairment is much easier for the drinker than for the outsider.
Beneficial
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.’ (Tyson & Brother vs Banton 273 US 418 at 446 (1927)).
“Almost all societies reveal a propensity to resort to alcohol or some other [624] disinhibiting substances 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 minimizing 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 the 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 . . . .”
•Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your emails to: cnmcc@caribsurf.com