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Accident: Sunday 26 June 1994

Trial Judge decision: Hulme J Supreme Court of New South Wales

Court of Appeal decision overturning trial Judge decision: 12 July 2002

High Court Judgment: 15 June 2004

FACTS

The plaintiff Ms Cole was a 45 years old lady on Sunday 26 June 1994 when she attended the Club from 9.00am for a "champagne" breakfast. She attended in a party of four, Mr and Mrs Watson and a man named Tom. Free Spumante was provided at the breakfast from 8.30am. 100-120 people attended the breakfast. The plaintiff had eight free glasses of Spumante. She then took turns with her friends to buy more bottles of Spumante. She may have herself purchased another two bottles. Mrs Watson gave evidence that by 12 noon the plaintiff was drunk. She was arguing with the two men in the group. At 12.20pm the two men left. At 12.30pm Mrs Watson saw the plaintiff drinking from the neck of a bottle of Spumante. She had been served a bottle of Spumante at about that time.

Mrs Watson left at 2.20pm and stated that by that time the plaintiff was totally inebriated. She had come across two friends from New Zealand and was then in their company. By the afternoon the numbers in the Club had increased to about 200. At 3.00pm she went to the bar to purchase another drink. She was refused service by Mrs Pringle on the basis that she was intoxicated.

At 5.30pm the Club manager, who earlier in the day had been managing Rugby League teams playing in a tournament outside the Club, saw the plaintiff grabbing the Maori men on their private parts at a table. He saw that she was being held up by one of the men. Mr Pringle approached the group and asked her to leave. He offered her use of the Club's Courtesy bus to which the response was "Get f..." He then stated that the Club would ring a taxi for her, to which the response was the same. At this time one of the Maori gentlemen told Mr Pringle to leave the plaintiff with them; "We'll look after her". Mr Pringle went about his business and within minutes the group left. The Maori men appeared to be sober.

At 6.20pm the plaintiff was struck by a car driven by the Second Defendant Mrs Lawrence who was driving her vehicle at about 70kph where the speed limit was 80kph.

At hospital the plaintiff's blood alcohol content was measured at .238 or the equivalent of 16 alcoholic drinks.

TRIAL JUDGE FINDINGS

Hulme J accepted that the plaintiff consciously set out to drink a significant amount and elected to continue, notwithstanding that she must have realised that she was heading to intoxication. He found that at about 12.30pm her state of intoxication must have been obvious to all. Staff members of the Club must have seen Ms Cole in a state of intoxication. Nevertheless at about` 12.30pm the Club sold her a bottle of Spumante which she rapidly consumed, holding it by the neck. He found that after 12.30pm the Club served alcohol to Ms Cole again, in unspecified quantities at unspecified times. She was very drunk when she left the Club at 5.30pm.

Because she was obviously intoxicated at about 12.30pm the Club had breached its duty of care to the plaintiff in serving her Spumante at that time. Hulme J found that the Club probably served her again after that time. The Club's breach of duty was causative of her injuries despite Mr Pringle offering her the Courtesy bus or taxi.

Hulme J apportioned liability as follows:

The Club: 30%
The driver - Mrs Lawrence: 30%
The plaintiff (contributory negligence): 40%

NSW COURT OF APPEAL

The major judgment was written by Ipp JA. Heydon JA (now High Court) and Santow JA agreed. In allowing the appeal Ipp JA made the following points:

• The free Spumante was on a central table. There were 100 patrons at the breakfast. The three staff members on duty could not know how much the plaintiff had drunk.
• Notwithstanding the evidence of her companion Mrs Watson no inference could be drawn that any of the three employees noticed that she had become significantly intoxicated by 12.30pm.
• There was no evidence of the source of alcohol after 12.30pm and it was not correct to infer that she purchased alcohol in the Club after 12.30pm.
• In the Johns -v- Cosgrove Qld case Ipp noted that Derrington J had followed Canadian law. The Canadian cases went further than the Australian Common Law, in that once a hotelier/club saw or should have seen that a patron was inebriated, the hotel/club must take reasonable steps to ensure that the patron arrives home safely.
• Ipp then focused on the principle that adults must assume responsibility for their own actions. The law did not recognise a duty to prevent persons from economic loss (gambling). Intoxication was no excuse to contractual obligations. Intoxication was not relevant to a criminal prosecution unless the accused was so intoxicated as to have no capacity. It followed that intoxication should not absolve one's responsibility for one's own safety.
• The Canadian cases reflected a discounting of personal responsibility which should not be the law in Australia.
• "In my opinion, save in extraordinary cases, there is no duty to protect persons who deliberately drink to excess."
• There should be no duty to assume responsibility for an intoxicated patron, except for extreme intoxication where the capacity to form an intent was destroyed, e.g. the patron was so drunk as to be unconscious.
• Personal responsibility overrides foreseeability and vulnerability.
• Ipp JA distinguished this case from cases where intoxicated patrons had caused injury to others.
• Heydon JA raised the practical difficulties for the Club:
• • Constant surveillance and investigation of patrons would be an invasion of privacy.
  • To restrain people from leaving could amount to false imprisonment.
• Santow JA made the following points:
• • The obligations of statute (Registered Clubs Act and Liquor Act) do not compel the Court to find an additional duty of care, given that the statutes do not provide a civil cause of action.
  • The practical difficulties of a licensee applying a heightened Common Law duty of care in crowded drinking areas.
  • Considerations of personal responsibility weigh heavily against attributing liability to the Club for a deliberate decision to drink irresponsibly, where essentially the Club's role was peripheral.

HIGH COURT JUDGMENT 15 JUNE 2004

The appeal was heard on 11 December 2003 and judgment delivered approximately six months later.

Gleeson CJ:

The Club had no duty to protect a person from a risk of injury resulting from self induced intoxication. Unless the patron was intoxicated to a very high degree he or she was responsible for his own acts.

He did not accept that the evidence supported a finding that it should have been apparent that the Plaintiff was intoxicated when she was sold the bottle of wine at 12.30pm. She had access to drink after that time in addition to that which the Club supplied her. At 3.00pm when she next sought to purchase alcohol she was refused.

The law respects personal autonomy. Arguments about monitoring and controlling her behaviour at the Club would involve a high degree of interference with her privacy and her freedom of action. As a rule we leave it to individuals to decide for themselves how much they eat and drink. Her intoxication was never so extreme that she was not legally responsible for her actions. The efforts of Mr Pringle at 5.30pm were reasonable.

Gummow & Hayne JJ:

The Club did not have a duty to monitor and moderate the amount consumed by the Plaintiff. The reasons for this were:

• There was no evidence to reveal that the Club employees could have observed how much she consumed in the morning. There were 100-120 people at the breakfast.

The two judges considered that the evidence did not go far enough to establish the existence of a duty of care.

The Club's offer at 5.30pm was reasonable and if the Police had been called that would only effect the same result; turn her out of the Club.

It is not appropriate to articulate a duty of care when the known facts are inadequate to establish the Club's knowledge of her alcohol intake. Accordingly, the articulation of a duty of care would be artificial.

Callinan J:

His Honour's judgment was in line with the Chief Justice. Except in extraordinary cases the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess.

The evidence did not establish that when she was sold the bottle of wine at 12.30pm her state of intoxication would have been known to the Club.

He agreed with the Chief Justice that if there was a duty of care there was no breach. The source of her alcohol intake after 12.30pm was a matter of speculation. The efforts of Mr Pringle at 5.30pm were reasonable. She was not turned out of the Club on her own. She left in a group of apparently sober men.

THE MINORITY JUDGES

McHugh J:

The Club had a duty to monitor the behaviour and condition of its patrons. The Club had a duty to protect its customers from injury as a result of consuming alcohol. This is the Canadian approach criticised by Ipp J in the Court of Appeal.

The Plaintiff's intoxication by lunchtime was plain for anyone who cared to look. The inference was irresistible that by early afternoon she had been reduced to a state that there was a real risk of harm. The Club's duty was not to discharged by refusing to sell her further alcohol at 3.00pm. The Club had a duty to take affirmative action and should have arranged for her to leave the Club by early afternoon.

Kirby J:

Patrons such as the Plaintiff were potentially vulnerable to harm as a result of the commercial activities of the Club. Accordingly, the Club had a duty of care in the terms stated by McHugh J. The situation in the Club was of its own making by enabling patrons to consume alcohol from 9.00am, including free spumante.

The actions of Mr Pringle at 5.30pm were not relevant to the issue. It was the Club's activities which had led to the Plaintiff being totally inebriated by early afternoon. By that time the breach of duty had occurred. She should have been removed from the Club by early afternoon.

THE EFFECT OF THE HIGH COURT JUDGMENT

Can it be distinguished?

Gleeson CJ and Callinan J expressed the principle that there is no duty of care to protect a person from risk of injury resulting from self induced intoxication. Unfortunately, Gummow and Hayne JJ, while appearing to sympathise with this view, stated that the facts of the case did not go so far as to establish a duty of care. McHugh and Kirby JJ were adamant that there was a duty of care to monitor the behaviour and condition of patrons.

Accordingly, there are two judges saying there was no duty, two judges saying there was a duty and two judges saying that the facts did not go far enough to establish a duty.

So while at first glance the decision seems to throw out cases brought by drunken patrons where they suffer injury, plaintiffs' counsel will seek to distinguish the case where facts show a greater knowledge of a particular patron's activities, which on the reasoning of Gummow and Hayne could possibly establish a duty of care. Perhaps if there was a bar where there were a small number of people of drinking, all of whom were open to observation from Hotel or Club employees, Gummow and Hayne JJ may have accepted a duty of care. Nevertheless on the facts of Cole they accepted that if the Club did owe the Plaintiff a duty of care it discharged that duty at 5.30pm by offering the safe transport home.

What are extraordinary cases?

The other aspect of the judgments of the Chief Justice and Callinan J is that they did not say what degree of intoxication ("to a very high degree" - Gleeson CJ, "extraordinary cases" - Callinan J), would lead to a duty of care existing.

The type of facts which may establish the duty were discussed by Ipp J in the NSW Court of Appeal judgment when referring to a UK decision of Barrett v Ministry of Defence [1995] 1 WLR 1217. In that case a naval airman aged 30 was serving in a shore based Royal Navy establishment in Norway. The Ministry operated bars in the establishment and one of the main recreational activities of personnel was drinking in the bars when off duty. Friday evenings were traditionally for heavy drinking and the airman concerned had recently learned that he was to be promoted. He commenced drinking at 9.15pm and by 11.00pm had consumed a minimum of four cans of cider, and nine double Bacardi's. He eventually became unconscious. He was placed in his bunk in the recovery position. At 2.30pm he was found dead. He had vomited and drowned or asphyxiated in his vomit. While the House of Lords accepted that a responsible adult should assume responsibility for his own actions in consuming alcohol, once he collapsed the defendant's measures fell short of standards reasonably to be expected. It did not summon medical assistance and its supervision was inadequate.

The difficulty we are left with is under what circumstances a particular plaintiff would be so intoxicated so as to create a duty of care? Mrs Cole was drinking from a bottle of Spumante at 12.30pm and by 5.30pm when seen by the manager she was "very, very drunk". She had to be held up and was behaving so badly that she was told to leave the premises.

On the principle announced by Gleeson and Callinan, a duty of care would arise to a plaintiff more intoxicated (or more badly effected) than Mrs Cole (blood alcohol content .238) perhaps to the extent of "passing out" such as in Barrett's case.

CONCLUSION

McHugh and Kirby JJ clearly focussed on the Club having the responsibility while Gleeson CJ and Callinan JJ focussed on the individual's responsibility for her own actions. Justice Kirby expressed his forthright view as follows:

" The withered view of community and legal neighbourhood propounded by Gleeson CJ and Callinan J is one that I would regret ".

Patrick Thompson
10 August 2004

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