Publican’s duty of care – exceptional circumstances

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 (10 November 2009)

Mr Scott’s wife commenced a claim against the hotel and Licensee (consolidateed – CAL No 14 Pty Ltd) for the death of her husband following a motor vehicle accident after drinking at their hotel. The MAIB commenced proceedings to recover money they had paid to Mrs Scott as a consequence of his death.

The central issue was whether a duty was owed by the hotel to Mr Scott in the context of him driving home after the consumption of alcohol: if “yes” – whether it had been breached and the breach caused his death.

GUMMOW, HEYDON AND CRENNAN JJ delivered the leading judgment. FRENCH CJ concurred to the extent of orders and the specifics of that there was no a duty of care, and even if it was breached, it has not been shown that the breach caused the death. His Honour noted that since then the Civil Liability Act commenced in Tasmania and other jurisdictions and to that extent would distinguish similar claims in the future.

The claim was dismissed.

The concern of the High Court was to clarify the “disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority”.

This came from the interpretation of Cole’s case and the principle that, “save in exceptional circumstances, publicans owe no duty of care to their customers in relation to how much alcohol is served and the consequences of serving it.”

 

49.

The decision of this Court in Cole v South Tweed Heads Rugby League Football Club Ltd[43] was not, strictly speaking, an authority binding the Tasmanian courts to hold that publicans owe no duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in exceptional cases. Callinan J upheld that proposition[44]. Gleeson CJ[45] decided that in the circumstances of that case there was no duty of care, but did so in terms consistent with the proposition upheld by Callinan J. On the other hand, McHugh J denied the proposition[46]. So did Kirby J[47]. Gummow and Hayne JJ expressly declined to decide the point[48]. Blow J[49], 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[50]. 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[51]. He did not think it plainly wrong, and he complied with that duty.

 

 

 

52.

There is in general no duty. The conclusion in this Court that the Full Court majority decision must be reversed as a practical matter overcomes these problems. However, even though the arguments in this Court proceeded in a much narrower way, being closely tied to the specific facts of this case, it is desirable to avoid repetition in future of what happened in this case by explicitly stating the fundamental reason why the Full Court majority decision on duty of care is wrong. The reason is that outside exceptional cases, which this case is not, persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume. That conclusion is correct because the opposite view would create enormous difficulties, apart from those discussed above[57], relating to customer autonomy and coherence with legal norms…

 

Their honours concern was that to accept a duty otherwise “would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms.” 

 As just one example of this rationale their honours noted publicans did not have statutory powers of police officers and could not “arrest Mr Scott or control his freedom to use property – the motorcycle and its keys – to which he had a right of possession” without the risk of breaching other duties or being liable in law to Mr Scott.

Accordingly, it was incompatible to say the publican could lawfully resist someone wanting to leaving in their vehicle.

 

 Their honours addressed at length the social, legislative and societal norms which were also incompatible with the success of such a claim, save in exceptional circumstance.

 

Brisbane Barrister – David Cormack

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