From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: January 19, 2009 7:49 PM
To: obligations@uwo.ca
Subject: ODG: duty owed to drunk hotel patron

Dear Colleagues;
Interesting decision of the Full Court of the Supreme Court of Tasmania on appeal in Scott v C. A. L. No 14 Pty Ltd (No 2) [2009] TASSC 2 (19 January 2009) http://www.austlii.edu.au/au/cases/tas/TASSC/2009/2.html . Owner of a hotel found liable for damages to the widow of a motor-bike rider who died in a road accident while drunk, after leaving the pub. Strong dissent from the Chief Justice, Crawford CJ, referring to the High Court of Australia decision in Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 which seems on first glance to be on point and to the contrary. But I must concede that the majority here are correct to say that the HC did not actually hold in Cole that there could be no duty of care.

The facts of this case are important. The deceased had previously, before getting drunk, actually arranged for the publican to store his motorbike in a cupboard, to which the publican had the only key, on the understanding that the publican would later call the deceased's wife to come and pick him up. But having achieved the requisite state of intoxication, the deceased changed his mind, demanded and was given the bike back, and set off. There is also an interesting debate about whether the publican could have resisted returning the bike (the subject of a bailment at will, I guess) or not. If he was been legally obliged to return it, can he be said to have not to been reasonable in withholding it? Can an action which is "reasonable" be also illegal?

Either way I have a pretty strong suspicion this decision, if it went on appeal, would be overturned by the High Court. But you never know, of course. With the imminent departure of Kirby J (I think Feb 2 is the final day) it is very hard to predict what the newly constituted Court will do with tort decisions (Justice Virginia Bell from the NSWCA, who will replace Kirby J, is regarded as a criminal law expert, so not a lot of information there that I am aware of in previous decisions.)

As a matter of interest, the High Court will, at that stage, contain 3 women out of the 7 Justices: is there a higher percentage of women in any other final court of appeal around the Commonwealth world?

Regards

Neil F