Australia: Licensed premises’ duty of care to patrons - High Court of Australia in Scott
C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board

Drink...Drunk...Your decision...Your responsibility! Licensed premises' duty of care to patrons - C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 (Scott)

The HCA in Scott considered the scope of the duty owed at common law by licensees to patrons within the particular factual matrix and determined that even if the licensee owed a duty of care as alleged and the duty was breached, the breach did not cause the patron to suffer the injuries that resulted in a fatal road accident.

The decision confirms the willingness of the HCA to impose on patrons an obligation of personal responsibility, even when intoxicated, subject to exceptional circumstances.

This is one of two noteworthy decisions recently handed down by the HCA that considered the duty of care owed by licensed premises and licensees. In the other decision, Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, the HCA found that the absence of security personnel at a restaurant in NSW did not cause two patrons to be shot on its premises. The restaurant was found not to be liable for the injuries sustained by the two patrons.

In both decisions the HCA found that the alleged conduct on the part of the licensed premises and licensee did not cause the alleged loss and damage.

Background to Scott

• On 24 January 2002 Mr Scott went to the Tandara Motor Inn (the Hotel), where he consumed alcoholic beverages with a friend. Mr Scott had his wife's motorcycle at the Hotel. A rumor was circulated that the police were operating a 'police breathalyser' or 'police speed camera' near Mr Scott's home. Mr Scott's friend suggested that Mr Scott should place his wife's motor bike in a room at the Hotel and hand the keys to the licensee, which he did. It was the licensee's understanding that Mr Scott's wife would collect him from the Hotel and he would collect the motorcycle the following day.
• Approximately 2 hours later, Mr Scott's friend's wife came to the Hotel to collect her husband and on two or three occasions she also offered to drive Mr Scott home. Mr Scott refused the offer and said that he would telephone his wife to collect him.
• After his friend left, Mr Scott placed his head on his hands on the bar, at which point the licensee: ...told Mr Scott he had had enough, said it was time to go home, and asked for Mrs Scott's telephone number so that she could be contacted to come and get him. According to a witness present in the bar at that time, Mr Scott responded: ...If I want my wife, I'll f***en ring her myself. The licensee gave evidence that Mr Scott became agitated and said: ...If I want you to ring my f***in' wife, I'd f***in' ask ya.
• Mr Scott left the bar for a short period and when he returned he asked the licensee for the motorcycle and keys to be returned. The licensee asked Mr Scott on three occasions whether he was 'right to ride' and Mr Scott responded on each occasion that he was 'fine'. Mr Scott left the Hotel riding the motorcycle and while en route home he ran off the road and was killed.
• Mrs Scott and the Motor Accident Insurance Board commenced an action in negligence against the licensee.
• At first instance the Supreme Court of Tasmania found that the licensee did not owe Mr Scott a duty of care in the circumstances pleaded. On Appeal, the majority of the Full Court of the Supreme Court of Tasmania (the Full Court) found that the licensee did owe a duty of care to Mr Scott and that this duty was breached, resulting in damage. The licensee sought leave to appeal to the HCA. The leave was granted.

The decision of the HCA

When the matter came before the HCA, the only alleged breach of duty was the failure of the licensee to telephone Mrs Scott (to collect her husband). The High Court, which considered the issues of causation, breach and the nature and scope of the duty owed, found that:

• even if the licensee owed a duty to Mr Scott and the duty was breached, the breach by the licensee did not cause Mr Scott's death
• even if the licensee owed a duty to Mr Scott, the licensee did not breach the duty of care,
• the licensee did not owe Mr Scott a duty of care.

Even if the licensee owed a duty to Mr Scott and the duty was breached, the breach by the licensee did not cause Mr Scott's death

In order to establish that the failure of the licensee to telephone Mrs Scott (to collect her husband) was a breach of an owed duty, the Respondents to the appeal would need to have established that if the licensee had telephoned Mrs Scott, this would have prevented the accident and ultimate death of Mr Scott. The High Court identified a number of obstacles that the Respondents would have needed to have overcome to establish this.

Those obstacles were, first, that the licensee had or had the means of ascertaining Mrs Scott's telephone numbers in order to make the call. Secondly, that Mr Scott would have given his wife's telephone numbers to the licensee if the licensee (who had requested the number) made a further request. Thirdly, that if the licensee had been provided with Mrs Scott's telephone number, she would have answered the phone and he would have spoken to her. Fourthly, if the licensee had been able to telephone Mrs Scott to request that she collect her husband, it could not be inferred that Mr Scott: ...would have responded meekly to her arrival, or that the licensee, adopting tactics of delay and deception, would have been able to delay Mr Scott's departure on the motor bike pending Mrs Scott's arrival.

The HCA found that it could not be shown on the balance of probabilities that these obstacles would have been overcome and further, even if the licensee had complied with his alleged duty to telephone Mrs Scott, it was not established that the accident would have been prevented. Accordingly, the HCA found that, even if the licensee owed this duty to Mr Scott and the licensee breached that duty, causation had not been established.

Even if the licensee owed a duty to Mr Scott, the licensee did not breach the duty of care

The Full Court found that the licensee had breached his duty of care to 'avoid' Mr Scott riding (the motorcycle) when his level of intoxication prohibited him from doing so safely. The Full Court relied on the failure of the licensee to:

• telephone Mrs Scott. The HCA found that without knowing Mrs Scott's telephone numbers, a further request would likely have resulted in a further violent, or more violent, outburst by Mr Scott
• deflect, delay, stall or manifest some resistance to Mr Scott leaving on the motorcycle. In addition to the deception that this would have involved and the effectiveness of this strategy in terms of its duration, the HCA observed that such conduct would have been contrary to Mr Scott's legal rights to possession of the motorcycle. The HCA also observed that the licensee could not lawfully detain Mr Scott
• refuse to hand over the motorcycle. Tennet J, of the Full Court found that if this had been done, the licensee would have committed an illegal act (as a sub bailee)
• drive Mr Scott home. The HCA observed that Mr Scott had already refused offers (by his friend's wife) to a lift home and the evidence did not establish that Mr Scott would have: ...submitted tamely to the licensee driving him home. Furthermore, the HCA observed that the licensee's absence from the Hotel may have amounted to a breach of his concurrent contractual or statutory obligations.

The HCA found that, analogous to the finding in Cole v South Tweed Heads Rugby League Football Club Ltd, that it had discharged its duty when it offered the plaintiff safe transport home, the licensee had similarly discharged his duty (if any duty was owed) when he offered to Mr Scott to telephone his wife.

The HCA determined that, even if a duty was owed by the licensee, that duty had not been breached.

The licensee did not owe Mr Scott a duty of care - HCA holds Mr Scott personally responsible

The duty relied on by the majority of the Full Court was a duty to take reasonable care to prevent Mr Scott from riding the motorcycle while he intoxicated, as it reduced his capacity to ride safely. The duty relied on by the Respondents before the High Court is the narrower duty referred to above, which the Respondent's submitted was agreed prospectively, namely a duty to telephone Mrs Scott so that Mr Scott did not face the risk of riding himself home.

The basis of the alleged duty was Mr Scott's alleged vulnerability and: ...the capacity of the licensee to influence events. Additional 'special features', including the commercial interests of the licensee to sell alcohol and the licensees knowledge of the impairing effect of alcohol on Mr Scott, were also relied on to give rise to an alleged duty of care. The HCA rejected this argument, holding Mr Scott responsible for his own actions. The HCA found Mr Scott: ...was likely to be conscious of his own capacity under the influence of drinking and, in the circumstances, no duty of care could arise for the following reasons.

• Storage of the motorcycle was to enable Mr Scott to avoid the rumoured breathalyser and gave rise to the assumption that Mrs Scott would collect Mr Scott, if called. Storage of the bicycle gave rise to obligations of a sub-bailee and entitled Mr Scott to immediate possession of the bike.
• Neither the relationship between the licensee and Mr Scott nor the circumstances of Mr Scott's level of autonomy made him vulnerable, giving rise to a duty of care.
• The duty alleged was contrary to the licensee's duty not to commit a tort, specifically false imprisonment and breach of obligations of a bailee.
• The duty alleged was likely to cause Mr Scott to become agitated and violent and this was contrary to the licensee's statutory obligations.^[i]

Further, the alleged duty was not consistent with the licensee's statutory obligations concerning the responsible service of alcohol and prevention of the commission of an offence, because these obligations were limited to licensed premises.

HCA relied on Sullivan v Moody [2001] HCA 59, to conclude that if the law of negligence were to create a duty in the circumstances presented by this case, it:

...would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms.

Accordingly the HCA found that that no duty of care was owed by the licensee to Mr Scott.

Duty of care owed by publicans generally to patrons and persons other than patrons

The HCA also considered the duty of care owed by a publican generally and observed:

...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...the opposite view would create enormous difficulties...relating to customer autonomy and coherence with legal norms.

In the result, the HCA allowed the appeal and set aside the orders of the Full Court.

Conclusion

The decision in Scott represents a sensible shift whereby responsibility is placed in the hands of the individual, and a licensee's general duty of care to protect patrons from the consequences of their own alcoholic consumption, is limited.

The decision means that, at common law:

• the amount of alcohol consumed is a matter for personal decision and individual responsibility
• a duty to safeguard an intoxicated person by not permitting the person to drive or traverse busy roads is inconsistent with the licensee's statutory obligation to eject intoxicated patrons (if such a duty was imposed, a licensee would be placed in the paradoxical position of committing the tort of false imprisonment or committing the tort of negligence)
• there is no general duty to patrons who may be injured by intoxicated patrons; however, a duty may exist on alternative grounds.

Nevertheless, proprietors and licensees should be aware that the common law duty to take reasonable care for patrons on their premises continues and in some circumstances, this duty may give rise to a duty to refuse to serve intoxicated patrons incapable of independent judgment and to ensure the safeguarding of such persons.

[i] Liquor and Accommodation Act 1990 (Tas)

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