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Date:
Wed, 21 Jul 2004 05:34:01 -0400
From:
David Cheifetz
Subject:
Commercial Social Host Liability and Free Will - the Australian
High Court speaks
In
Cole v South Tweed Heads Rugby League Football Club Limited
[2004] HCA 29 (15 June 2004) Ms Cole indulged herself in the long-honoured
Commonwealth and US custom of attending a suitable establishment
for the express purpose of making significant alterations in the
relative levels of alcohol and water in one's blood - i.e., to get
pissed. She left the club's premises in an intoxicated state having
refused (apparently crudely) the club's offer to provide transportation.
She left the club in the company of apparently sober (enough) male
companion(s) and then left them. She was injured in a motor vehicle
accident shortly after. She was walking on a public road and was
struck by an automobile. She was walking in a careless manner because
she was drunk. She was severely injured. She sued the driver and
the club. She succeeded against both at trial. On appeal, the NSWCA
set aside the judgement and dismissed her action.
On
further appeal, just with respect to the dismissal of Cole's claim
against the club, the HCA upheld (4-2) the NSWCA decision that the
club had no duty to her to protect her from the foreseeable consequences
of self-induced intoxication.
2
members the majority also held that there is no general duty of
care to adult patrons [not subject to any sort of relevant mental
or other disability] arising out of the service of alcohol to patrons
who became intoxicated while on the premises as result of drinking
themselves silly and who, within a short time after leaving the
premises, were injured in a motor vehicle accident after leaving
the premises which accident was caused by the patron's self-induced
intoxication. Put more bluntly, even a commercial establishment
does not have a general duty to protect supposedly mentally competent
adult patrons from the foreseeable consequences of their own stupidity,
i.e., voluntary drunkenness. The other 2 members of the majority
held that it was not necessary to decide the general duty question
and, on the facts of the case, the club had not breached any specific
duty that it owed to Cole.
The
minority would have allowed the appeal on the basis that a general
and specific duty did exist, citing with approval the Supreme Court
of Canada decisions in Stewart
v Pettie [1995] 1 SCR 131 and Menow v Honsberger [1974] SCR
239.
The
reasons of 4 judges who dealt with the general duty show a certain
level of intellectual animosity, as well as philosophical differences
as to the desirable, permissible, paternalistic reach of tort law.
For
example, Kirby J. (dissenting) wrote, in para. 92 and 93:
92.
In such circumstances, to hold that the Club owed no duty of care
by the standards of the common law of negligence, to patrons such
as the appellant, is unrealistic. Such a patron was a person who,
in the reasonable contemplation of the Club and its employees, was
potentially vulnerable to harm as a result of its commercial activities.
Such harm was reasonably foreseeable in the given circumstances.
The appellant was within the proximity of the Club in a physical
sense. The policy reasons, concerned with free will and personal
autonomy, that might in other circumstances justify withholding
the imposition of a duty of care are overridden, in the case of
the Club, by the commercial interest it had in the presence of the
appellant on its premises and the known propensity of the alcoholic
product, made available there, to expose at least some individuals
to the risk of serious harm.
93.
With all respect to those with doubts or holding contrary views,
I therefore have no hesitation in concluding that the Club owed
the appellant a duty of care of the kind posited. There is much
support for this proposition in Canada: Jordan House Ltd v Menow
[28] and Stewart
v Pettie [29]. There are many decisions elsewhere that support
the general proposition that a person in control of licensed premises
owes a duty of care in negligence to take reasonable precautions
in the circumstances not to contribute to a danger to others:
Chordas
v Bryant (Wellington) Pty Ltd [30] and Munro v Porthkerry
Park Holiday Estates Ltd [31]. The withered view of community
and legal neighbourhood propounded by Gleeson CJ and Callinan
J is one that I would reject.
McHugh
J. (also dissenting) wrote:
46.
The rigorous application of basic negligence doctrine requires the
reversal of the Court of Appeal's decision and the restoration of
the trial judge's verdict in favour of Mrs Cole. No doubt some minds
may instinctively recoil at the idea that the Club should be liable
for injuries sustained by a drunken patron who is run down after
leaving its premises. But once it is seen that the Club had a legal
duty to prevent her drinking herself into a state where she was
liable to suffer injury, the case wears a different complexion.
The Club has a legal responsibility for the injury. Instinct must
give way to the logic of the common law.
On
the other hand, Gleeson CJ. wrote:
18.
The consequences of the appellant's argument as to duty of care
involve both an unacceptable burden upon ordinary social and commercial
behaviour, and an unacceptable shifting of responsibility for individual
choice. The argument should be rejected.
and
Callinan J. wrote
131.
I am also of the opinion that in general - there may be some exceptional
cases - vendors of products containing alcohol will not be liable
in tort for the consequences of the voluntary excessive consumption
of those products by the persons to whom the former have sold them.
The risk begins when the first drink is taken and progressively
increases with each further one. Everyone knows at the outset that
if the consumption continues, a stage will be reached at which judgment
and capacity to care for oneself will be impaired, and even ultimately
destroyed entirely for at least a period.
132.
It follows that I would disagree with any propositions to the contrary
deducible from the Canadian cases referred to in argument: Stewart
v Pettie and Jordan House Ltd v Menow.
The
other 2 members of the majority, Gummow and Hayne JJ, were of the
view that even if there was a general duty (a question they did
not decide) the Club had fulfilled any specific duty to Cole when
it offered her transport which she declined.
80.
Again, even if there were some duty to take reasonable care not
to allow her to leave the premises except by a safe means of transport,
the Club did not breach that duty. It took reasonable steps to make
safe transport available to her.
Their
reasons contain these paragraphs:
77.
The appellant contended that the Club broke its duty by allowing
her to leave its premises in an intoxicated state. It was said
that the Club should have "counselled" her before she
left, to impress upon her the dangers that might await her. Why
that should be so when she was willingly in the company of two
apparently sober men offering to look after her is far from clear.
And exactly what form this counselling might usefully have taken
is equally unclear.
78.
The appellant was an adult woman whose only disability at the time
she was turned out of the Club was the state of intoxication she
had induced in herself. There was a thinly veiled suggestion that,
because it seemed that the appellant's companions may have had sexual
designs upon her, they were "unsafe" companions with whom
to allow her to leave the Club. But what business would the Club
have had to attempt to look after the moral wellbeing of the appellant?
David
Cheifetz
Bennett Best Burn LLP
Toronto, Canada
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