When success turns to failure – liability of the hotelier to the intoxicated patron

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47

Earlier this year we reported on the outcome of this litigation before the Tasmanian Full Court. We said at the time that an intoxicated party recovering compensation will always grab a headline and that this case was no exception. Once again it has grabbed another headline.

The Full Court had allowed Mrs Scott to recover damages against the defendant hotelier in respect of the death of her husband, 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%. Before this, with the deceased’s consent, the hotelier had locked the deceased’s motorcycle in a storeroom and had taken his keys.

Although two witnesses gave evidence that the deceased did not seem intoxicated, the Full Court found that the hotelier must have known the deceased was intoxicated and should not drive. The Full Court found the hotelier owed a duty of care to the deceased and breached that duty by failing to prevent the deceased from riding his motorcycle whilst intoxicated (in practical terms, providing the deceased with his keys to enable him to ride).

There was a breach of duty despite the fact that the hotelier had offered to ring the deceased’s wife to collect him – an offer which he had aggressively refused. The Full Court found that the hotelier should still have made contact with the deceased’s wife.

The Tasmanian Full Court, whilst accepting the general principle that an hotelier does not owe a duty of care to a patron to prevent harm caused by the patron’s own intoxication, thought this case represented an exception to this rule. The High Court upheld the general principle but disagreed that this case represented an exception to it.

In an unanimous decision, the High Court found in favour of the hotelier and held that no duty of care was owed to the deceased to prevent harm caused by his own intoxication and, even if a duty had arisen, it was not breached once the hotelier had offered to contact the deceased’s wife.

The High Court found that there was no causal link between any alleged breach and the deceased’s death because it could not be established on balance that a telephone call to the deceased’s wife would have prevented the death or that the hotelier could have even ascertained the telephone number to make contact with the deceased’s wife.

Other findings of the High Court included the following.

• To refuse to hand over the motorcycle or keys would have amounted to an illegal act and in breach of the hotelier’s duties as a bailee.
• To make the refusal effective may have necessitated the hotelier illegally committing the torts of assault and false imprisonment which would clash with the hotelier’s duty not to commit such torts.
• Had the hotelier driven the deceased home (leaving the hotel unmanned) he may have been in breach of his own contractual or statutory duties.
• Whilst the hotelier might have been able to deflect the deceased’s attention for a period (to allow his wife to arrive), that could not have occurred for long and may not have been effective anyway.
• The deceased was not “vulnerable” such as to create a special duty of care. He did not appear intoxicated to others or display the conventional signs of drunkenness.
• The hotelier was not pressing drinks on the deceased.
• Above all else, refusal to hand over the keys would have interfered with the deceased’s own autonomy. The deceased was found to be in the best position to judge his sobriety and capabilities. The court recognised that alcohol affects people in varying ways and is not necessarily linked to the amount of consumption.
• Constant surveillance of drinkers is impractical. Equally “to ask how the drinker feels and what their mental and physical capacity is would tend to destroy peaceful relations, and would collide with the interests of drinkers in their personal privacy”.

Interestingly the High Court left open the question as to whether a duty may be owed to a third party who is affected by an hotelier’s breach. Time will tell whether this possible loophole can be successfully exploited.