The key to success – liability of the hotelier to the intoxicated patron

23 February 2009 Topics: Insurance

Scott -v- C.A.L. No. 14 Pty Ltd (No. 2) [2009] TASSC 2

An intoxicated party recovering compensation will always grab a headline. This case was no exception.

It has been some years since the courts have been called upon to rule on the liability of an hotelier who serves alcohol to a patron who is later injured as a result of intoxication. The leading case in the area remains Cole -v- South Tweed Heads Rugby League Football Club Ltd where the New South Wales Court of Appeal found that an hotelier’s duty of care to a customer generally does not require the taking of care to prevent harm caused by the customer’s own intoxication.  However, it has also been accepted that this general rule can be displaced in exceptional circumstances.

The claimant, Mrs Scott, sought damages against the defendant hotelier in respect of the death of her husband (the deceased) who was killed on his motorcycle shortly after leaving the defendant’s hotel, where he had become intoxicated. The deceased was served alcohol by the defendant hotelier over a number of hours resulting in him having a blood alcohol concentration of 0.253 grams of alcohol in 100 millilitres of blood. Despite there being evidence from two persons to the effect that the deceased did not seem intoxicated, the court found that the hotelier must have known the deceased was intoxicated and should not drive.

At the time the deceased arrived at the hotel, the hotelier, with the deceased’s approval, had locked the deceased’s motorcycle in a storeroom and had taken possession of the deceased’s keys. Shortly before the deceased left the hotel, he asked the hotelier for the keys and was given them.

In a 2/1 majority verdict, the Tasmanian Full Court found that the deceased was owed a duty of care in these exceptional circumstances and that duty had been breached giving the claimant an entitlement to damages. The court did not however, dispute the general principle in Cole’s case noted above. Here, unlike in Cole’s case, the hotelier knew the exact amount of alcohol the deceased had consumed and how the deceased intended getting home. The court found that the taking of the deceased’s keys transformed the relationship and took it beyond the normal relationship between hotelier and patron. The court found that the hotelier was under an obligation in the circumstances to take reasonable care for the deceased and that would involve refusing the deceased’s request for his keys, even though legally the deceased had a right to them. Had the deceased responded with a threat of violence, however, it may have been reasonable for the hotelier to have given way. He did not. Furthermore, the court found that the hotelier ought to have contacted the deceased’s wife even though the deceased had declined a previous suggestion that the hotelier do so.

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