Duty of care

Publicans across Australia will be breathing a sign of relief today. In a fascinating (if you’re into that sort of thing) judgement, the High Court in the case of

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

has ruled publicans have no general duty of care to protect patrons from the consequences of getting drunk..essentially not duty to protect them from themselves.

It is predictably being hailed as a victory of common sense, which in many ways it is. However, it would also seem to raise considerable problems for the Responsible Service of Alcohol schemes that operate in many states.

The Court found that there is no general duty of care, saying…“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.”

While emphasising the “important statutory duties in relation to the service of alcohol”, the also highlighted the problems in policing these laws.

In Queensland the Liquor Act makes it an offence on licensed premises to (my emphasis):

• sell/supply/provide liquor to an unduly intoxicated patron
• allow another person to supply an unduly intoxicated patron with liquor
• allow an unduly intoxicated patron to consume liquor.

In reaching their decision three judges, with whom a fourth agreed, stated (again, my emphasis):

Expressions like "intoxication", "inebriation" and "drunkenness" are difficult both to define and to apply. The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive. It is difficult for an observer to assess whether a drinker has reached the point denoted by those expressions. Some people do so faster than others. Some show the signs of intoxication earlier than others. In some the signs of intoxication are not readily apparent. With some there is the risk of confusing excitement, liveliness and high spirits with inebriation. With others, silence conceals an almost complete incapacity to speak or move. The point at which a drinker is at risk of injury from drinking can be reached in many individuals before those signs are evident. Persons serving drinks, even if they undertake the difficult process of counting the drinks served, have no means of knowing how much the drinker ingested before arrival. Constant surveillance of drinkers is impractical. Asking how much a drinker has drunk, how much of any particular bottle or round of drinks the purchaser intends to drink personally and how much will be consumed by friends of the purchaser who may be much more or much less intoxicated than the purchaser would be seen as impertinent. Equally, to ask how the drinker feels, and what the drinker’s mental and physical capacity is, would tend to destroy peaceful relations, and would collide with the interests of drinkers in their personal privacy. In addition, while the relatively accurate calculation of blood alcohol levels is possible by the use of breathalysers, the compulsory administration of that type of testing by police officers on the roads was bitterly opposed when legislation introduced it, and it is unthinkable that the common law of negligence could compel or sanction the use of methods so alien to community mores in hotels and restaurants. 

To me they are also saying that it is almost impossible to adhere to the responsible service of alcohol requirements that Governments require them to adhere to.

As the publicans are saying today (as reported in The Australian):

But the AHA and individual publicans hailed the ruling as sending a strong warning to drinkers to take responsibility for their own actions.

Which as a general principal I agree with – people should take responsibility for their own actions. Except that there is a significant section of society that doesn’t. Even though drink driving laws have been around for a generation, there are still f*ckwits around who think nothing of driving with a skinfull. If taking personal responsibility meant that they were the only ones killed by their actions, all would be good. But these people share the roads with me. They are just as likely to kill me or my children as themselves.

I don’t know what the solution is, but it is a lot more complicated than any one of the groups with a vested interest would have us believe. I’ve been doing a of of writing about this lately, soon to be published, that I suspect makes me sound like a wowser or a card carrying anti-alcohol crusader. Believe me, I’m not and I know I’m not because all of this thinking about it is driving me to drink!