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Date: Mon, 8 May 2006 15:01:45 +1000 From: Neil Foster Subject: Childs v Desomeaux
Dear Colleagues; Thanks to those who contributed to a fascinating debate prior to this decision. I will take the advantage offered by the dateline (it is now Monday afternoon here and I've had a chance to read the judgement delivered on Friday) to offer a few preliminary comments from an Australian perspective. As Harold noted recently in his excellent brief summary of "liability for harm caused by 3rd parties", in Australia the latest word from the High Court in this area is slightly ambiguous. Colleagues are probably aware (unlike the SCC which seems to be continuing its practice of ignoring the law south of the Equator) that in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 there was a 3-way split in a commercial alcohol provider case, with only 2 of the bench (Kirby & McHugh JJ) finding that there was a duty of care in the case of commercial providers. (The plaintiff customer had been hit by a car while walking home drunk.) Another 2 (Gummow & Hayne JJ) specifically declined to decided whether or not there was a duty of care owed by those who sold alcohol to their patrons - see paras [57], [81]. They found that even if there had been a duty of care which implied either that the club should have more carefully monitored the patron’s intake of alcohol, or taken steps to see she could travel home safely, the club had discharged their duty by offering to provide a courtesy bus or a taxi (an offer which was bluntly refused). Gleeson CJ and Callinan J, in separate judgements, agreed that there had been no breach of duty, and went further in holding that no duty of care arose in the circumstances - see paras [12], [18], [121], [131]. In Childs 2006 SCC 18 now a unanimous 7-member bench of the Sup Ct of Canada (McLachlin CJ delivering the judgement) finds that in the case of a social host there is no duty of care in relation to harm caused to 3rd parties by the drunken guest driving home. The duty fails at the first stage of the two-stage Anns test now used by the SCC to decide whether or not a duty of care exists in "novel" cases. (Of course whether or not this is a "novel" case [and so whether or not under Cooper v Hobart the Anns test needs to be applied] seems to me to raise some interesting issues. I note that in the previous discussion on this list Stephen Pitel suggested that it is not novel at all - that since running a party involves a foreseeable risk of injury to guests and others then the duty is straightforward. McLachlin CJ spends paras [15]-[23] of the judgement showing that it is a novel question and outlining distinctions between commercial alcohol providers (in relation to whom, unlike Australia, previous Canadian authority recognises a duty of care) and the social case.) To cut to the core of the case - the finding of "no duty" is a result of McLachlin CJ's finding that there is no "proximity" because (1) injury to others in this case was not foreseeable on the facts: paras [27]-[30]; though known by the hosts to be a heavy drinker, Mr D was not proven to have been displaying signs of intoxication before he left the party; (2) this is a case of nonfeasance rather than misfeasance, and to create proximity in such a case one of three recognised situations must be present, none of which were present here paras: [31]-[42]. Two questions of the many which I am sure arise: (a) To me the emphasis on the lack of foreseeability on the facts of this case is odd in a question of the duty of care. This is the sort of debate the High Court of Australia has been having recently over whether we have a "generalised" duty of care (and then consider the specific facts as a matter of breach) or whether we have a number of very tightly confined "duties" each with their own "scope" - see eg the debate in Vairy v Wyong Shire Council [2005] HCA 62; the result of which at the moment seems to be a majority favouring the general as opposed to the more specific - see in Vairy McHugh J at [20]-[32], Hayne J at [118], Gleeson CJ & Kirby J at [2], [6]; as opposed to Gummow J [58]-[64]. As I read the discussion on this list John and Lewis would perhaps agree with the SCC here that there is no general duty of care, but I think Richard (and perhaps Robert) would disagree. I think I would fall into the latter camp. To my mind the action of hosting a party where alcohol is to be served is a "feasance" sufficient to constitute a possible misfeasance. After all, and I may simply be generalising from Australian experience here, all too often the presence of alcohol at a party is not merely fortuitous or indeed foreseeable - it is one of the primary reasons for holding the event! To put it bluntly, at least in some circles and in some situations, a chief reason to go to a party is to get drunk or to take advantage of the drunkenness of other guests. I may be too cynical and other countries may be more refined, but that is what I have observed. If that is the case, then, if the consumption of alcohol is in many cases essential (at the least, to "lubricate" the evening and to make the jokes seem funnier) then surely to undertake the staging of such an event is indeed (despite what McLachlin CJ says at [35]) to "create a risky situation and invite others into it". (b) So would it not be better to acknowledge that those who run alcohol-fuelled activities have a general duty of care, and leave to the breach stage the question whether they have been sufficiently careful? I would even be happy to extend this to the Star Wars party (an example which resonated greatly with me as my 15-year-old daughter put on precisely this event for her friends just after the last movie came out [viewing the 5 previously released on DVD but going to the cinema to see the last one in the middle]. I did indeed make sure that all the participants had lifts home with their parents!!). I must confess that John's example of the unicycle in the basement gave me pause - I agree that simply "allowing access" to a possible risky item ought not create a duty of care. But that seems to me to be quite different from inviting people to my home to engage in an activity which I know will impair their judgement when they leave to travel on public roads. I think there might be a duty of care if I invited people into my home to a unicycle riding party, and then encouraged them to travel home that way!
Regards
Neil
Foster
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