Drink driving – a personal responsibility or the responsibility of the licensee?

May 12, 2010

Hotel proprietors and licensees do have a duty of care to their patrons, but patrons still need to take personal responsibility for any decision to drink-drive. The High Court has examined the issue of drink-driving and duties of hotel proprietors and licensees in a landmark case late last year [1].

In this case, an intoxicated patron died in a road accident after driving his motorcycle home from the hotel where he had been drinking after work.

The patron arrived at the hotel about 5.15pm and on hearing of police breathalysers in the area made an arrangement that the hotel licensee would keep the motorcycle in the hotel storeroom and hold onto its keys. When the patron was ready to go home, the licensee was to telephone the patron’s wife to pick him up.

After drinking for about three hours, the patron was ready to leave about 8.30pm. The licensee offered to call his wife but the patron refused, insisting the licensee hand over the keys so he could ride the motorcycle home.

The licensee claimed that the patron was agitated but did not appear drunk and he repeatedly sought assurances from the patron that he was “right to ride”, with the patron responding that he was fine.

The licensee retrieved the motorcycle and the patron drove it away – with fatal consequences. There was conclusive evidence the patron’s accident was directly related to his blood alcohol reading of 0.253g per 100mls of blood.

The patron’s widow and the Motor Accidents Insurance Board (the Board) sued the hotel proprietor and its licensee for negligence, claiming they owed a duty of care to the patron which had been breached, resulting in his death.

The Supreme Court of Tasmania found that neither the proprietor nor the licensee owed a duty of care in these circumstances, but that if they did, it would have been breached by the failure of the licensee to prevent the patron from driving from the hotel.

On a successful appeal to the Full Court of the Supreme Court of Tasmania, the Court found in favour of the patron’s widow and the Board by holding that a duty of care did in fact exist and that it was breached.

A further appeal to the High Court found in favour of the proprietor and the licensee.  The decision was based on three reasons.

First, the element of causation was not established.  The patron’s widow and the Board needed to show that even if there was a duty of care that was breached, the breach had to have directly caused the patron’s death.  On these facts, there was no evidence that even if the licensee had tried to telephone the wife to take the patron home that the wife would have been successfully contacted, responded by attending and that the patron would have willingly left with her.  There were several surrounding factors that made causation difficult to prove in this case.

Second, the High Court found that there was no breach of duty by the licensee.  In complying with the agreement made, the licensee had asked the patron to let him telephone his wife but the patron refused.  The licensee could not have been reasonably expected to physically restrain the patron or refused him possession of his own property when he resisted.

Finally, the High Court decided that, while licensees do owe a general duty of care to patrons who use their premises, including duties such as maintaining safe premises and monitoring equipment within the premises, the duty should not be extended in this case.  The duty of care alleged in these circumstances was particularly narrow and required reliance on a sequence of events that could not reasonably be established.  As a result, there was no specific duty of care established on which the patron’s widow and the Board could rely in this case.

The case highlights the practical difficulties faced by hotel licensees when dealing with their patrons.

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