Date: Tue, 9 May 2006 15:25:33 +0100

From: Robert Stevens

Subject: Childs v Desomeaux

Am I right that Canadian law is now something like the following:

1) Commercial hosts owe extensive duties to grown ups that they take care not to injure themselves by drinking too much;

2) Social hosts owe no duty, or a duty only in exceptional circumstances, to third parties who are injured by the host's failure to take reasonable steps to regulate the alcohol served at a party?

On its face this looks the wrong way around. The customers have exercised a choice to drink, and many people, including me, would say they have to take personal responsibility for that. Third parties who are injured had no choice in the matter at all.

So what justifies the difference? Presumably it is thought that the liabilities of commercial hosts should be more extensive than those of social hosts. Why? The only half convincing argument is that given at [23], that as the commercial hosts are in it to make profits, they have to take the burdens of paying for the harm which goes with this.

For me, this sort of policy based argument is the source of the confusion in cases such as Childs. As an outsider, to the extent that any common lawyer is an outsider, the decision requires future courts to answer impossible questions. The treatment of foreseeability, 'novel' duty situations and the peculiar approach to nonfeasance will all lead to future litigation.

(Despite the opinions of others on this list, I remain firmly of the view that if I have the choice between throwing a party which, with minimal precautions, creates no risks to anyone else, and throwing a party without those precautions which creates a risk of others being run over and killed, if I choose the latter course it is not 'nonfeasance'. Unless Canada has remarkably different road accident figures from the UK, deaths and injuries from drunk driving are significant risks.)

Childs may, just about, be defensible in result on the facts on the basis that there was no carelessness. However, I'll have to be careful on the streets when I visit Canada next month.

(If I go to a drinks reception at the university, is the university a commercial or social host? I'd better stick to orange juice.)

Robert Stevens
Barrister
University of Oxford

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