Liability of Hoteliers to Departing Patrons by TurksLegal

Liability of Hoteliers to Departing Patrons By Andrew McArthur | November 2009 Area of Expertise | General Insurance

Summary On 10 November 2009, the High Court conﬁrmed in its decision in the Tandra Motor Inn case that those responsible for operating premises licensed to serve alcohol are generally not under a duty of care to impede or limit a patron’s autonomy, despite it being apparent that in exercising that autonomy, the patron would be leaving the premises in circumstances involving a heightened risk of harm attributable to their intoxication. The High Court also recognised that, in this context, exceptional circumstances may give rise to a duty of care in particular situations.

Who Does This Impact? This ruling is of interest to insurers and those involved with owning or operating licensed premises.

What Action Should Be Taken? The duty of care that can arise in the special circumstances associated with the foreseeable risks confronting patrons leaving licensed premises must remain the subject of careful analysis. Only truly exceptional circumstances will warrant a departure from the general rule, which is that a licensee owes no duty to an intoxicated patron leaving the premises.

The High Court has conﬁrmed in its decision of 10 November 2009 in the Tandra Motor Inn case1 that those responsible for operating premises licensed to serve alcohol are generally not under a duty of care to impede or limit a patron’s autonomy, despite it being apparent that in exercising that autonomy, the patron would be leaving the premises in circumstances involving a heightened risk of harm attributable to their intoxication. The High Court also recognised that, in this context, exceptional circumstances may give rise to a duty of care in particular situations. In this case, the hotel and its licensee were found to owe no duty of care to the patron to prevent him from leaving the hotel on a motorcycle while intoxicated. For more background, including a discussion of the decisions in the Supreme Court of Tasmania, please refer to the TurkAlert ‘New Development in Liability of Hoteliers to Patrons’.

Facts As detailed in our previous TurkAlert, the facts are as follows: On the afternoon of 24 January 2002, Shane Scott (the deceased) rode from his place of work on his wife’s motorcycle to the Tandara Motor Inn in Triabunna, Tasmania (the Hotel). Mr Kirkpatrick, the licensee, served the deceased alcohol for approximately three hours before refusing him further service on the grounds of intoxication. Despite his expressed intention earlier in the evening to be collected by his wife, the deceased decided in the end to ride the motorcycle home. He died that evening when he ran off the road and collided with the guardrail on approach to a nearby bridge. His widow, Sandra Scott, sued the Hotel and its licensee, alleging negligence. She was unsuccessful at trial but successful on appeal by a two to one majority, with the Chief Justice dissenting.

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Liability of Hoteliers to Departing Patrons by Andrew McArthur

The deceased attended the Hotel at approximately 5:15pm. He was initially served by Mr Kirkpatrick’s wife. Mr Kirkpatrick commenced serving the deceased at 5:30pm. There was talk in the bar of a breathalyser unit being erected nearby. In the context of the deceased’s expressed intention to be collected by his wife, a decision was made between the deceased and Mr Kirkpatrick to store the motorcycle in a store room at the rear of the Hotel. Mr Kirkpatrick opened the storeroom from inside the hotel and the deceased placed the motorcycle inside before giving the motorcycle keys to Mr Kirkpatrick, which he then put in a petty cash box behind the bar. There was an arrangement that the deceased would continue drinking and would call his wife to pick him up when he was ready to leave. The deceased left the Hotel at approximately 8:30pm, shortly before the accident. During the three hours in which he was drinking at the Hotel in the company of Mr Kirkpatrick, it was found that he had consumed eight 375ml cans of Jack Daniels and Cola. The deceased was alone in the bar towards the end of his stay, with the exception of another female patron who spoke with him brieﬂy. During that time he rested his head on the bar a number of times. The deceased started arguing with this woman and at that point Mr Kirkpatrick told him that it was time for him to leave. He asked the deceased for his wife’s telephone number in order that he could contact her and have her pick him up from the Hotel. The deceased replied in an aggressive and abusive manner, stating in a nutshell that if he wished to call his wife that he would do so. The deceased then walked outside the Hotel for a time and then returned and asked for his keys. Mr Kirkpatrick asked him a number of times if he was ‘right to ride’. The deceased answered that he was ﬁne and that he wished to leave. Mr Kirkpatrick gave him the keys to his motorcycle and he left.

The Decision of the High Court The High Court held that there was no duty of care and that none of the breaches of duty established in the Supreme Court of Tasmania had, in any event, been shown on the evidence to have contributed materially to causing the accident. For instance, it was not shown that Mr Kirkpatrick could have phoned and established contact with the deceased’s wife. He did not have a number for her and it was not shown how he could have acquired a number. It was also not shown whether the wife was accessible by phone at the relevant time. It is signiﬁcant in this regard that it was not arranged or agreed that the deceased’s wife would be called by Mr Kirkpatrick. In explaining the decision, the Court held that the circumstances were not exceptional circumstances in which it might be held that a duty of care was owed. The Court gave reasons along these lines for holding that there was no duty of care in this case: 1. The deceased was not in a position of vulnerability. He was an experienced drinker and was refused further service of alcohol by the licensee after he became aggressive. 2. The arrangement for the motorcycle to be locked in the storage room was for the convenience of the deceased, so that he was not ﬁned for drink driving, not to avoid him being killed or hurt. It was an informal arrangement and gave no authority to the licensee to deny the deceased his keys and access to his property. 3. The duty formulated by the Full Court of the Tasmanian Supreme Court was formulated very narrowly. It selected a particular chain of events and circumstances leading to the accident and contended that there was a duty to avoid the circumstances where the deceased ended up leaving the hotel on his motorcycle in an intoxicated state.

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Liability of Hoteliers to Departing Patrons by Andrew McArthur

4. The imposition of a duty would have conflicted with the deceased’s autonomy. Any duty imposed on the licensee would have prevented the deceased from acting in accordance with his desire to ride his wife’s motorcycle home. The conflict arose because the deceased was not vulnerable and on the evidence retained full autonomy throughout. 5. The imposition of a duty in this instance would have created a lack of coherence with other torts, such as to avoid the use of physical force to prevent the deceased from obtaining his keys. 6. The imposition of a duty would also have clashed with the duties of the licensee as a sub-bailee, to hand over the keys on demand to the deceased, the bailee of the motorcycle for Mrs Scott. 7. The imposition of a duty would involve a lack of coherence with legislative regimes concerning service of alcohol. The licensee already had statutory duties in relation to responsible service of alcohol and to require a patron to leave the licensed premises and to take reasonable steps to prevent the commission of an offence, but only on the licensed premises. The police had the power to prevent the deceased from riding the motorcycle if they believed him to be over the legal limit. The High Court also made some general observations about the duty of care owed to patrons of licensed premises. The following is a summary of these: 1. Outside exceptional cases, persons in the position of proprietor or licensee, while bound by certain statutory duties in relation to service of alcohol and conduct on licensed premises, owe no general duty of care at common law to patrons which requires them to monitor and minimise the service of alcohol, or to protect patrons from the consequences of the alcohol they choose to consume. 2. It is difficult for a person to accurately judge the level of intoxication of another person and as such, this does not make the introduction of a civil duty of care by reference to ordinary definitions of intoxication workable or attractive. To require hotels and other places serving alcohol to minutely monitor a person’s drinking would be completely unworkable. 3. Almost all adults understand the effects of alcohol and if they decide to consume it, they should take responsibility for the consequences. 4. To introduce a civil duty would interfere with an individual’s autonomy and be overly paternalistic. 5. The introduction of a civil duty would create legal incoherence, as discussed above.

Implications This case highlights the approach required in Australia to the duty of care owed to patrons of licensed premises intent on departing in an intoxicated state. Only truly exceptional circumstances will warrant a departure from the general rule, which is that a licensee owes no duty to an intoxicated patron leaving the premises. The issue of a patron’s autonomy will be central to what might amount to an exceptional case – such autonomy may be qualiﬁed or restricted by the conduct of the patron and others, or simply by the effects of extreme intoxication. The risks posed to members of the public by an overly intoxicated patron was not the subject of the High Court’s analysis on this occasion, but many of the considerations raised by the Court would be relevant in any such case.

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Liability of Hoteliers to Departing Patrons by Andrew McArthur

Endnotes 1

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

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Liability of Hoteliers to Departing Patrons by Andrew McArthur

For more information, please contact:

Andrew McArthur Lawyer T: 02 8257 5702 andrew.mcarthur@turkslegal.com.au

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