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Last drinks: When do suppliers of alcohol owe a duty of care?

Feature Articles

Cite as: (2005) 79(9) LIJ, p. 56

The High Court was divided in its approach when considering whether suppliers of alcohol owe a duty of care to customers who become intoxicated and then suffer injuries.

By Michael Edelstein

The supply and consumption of alcohol plays a significant part in both Australian culture and its economy. Yet there are many associated costs as a result. It is estimated that alcohol is responsible for 4.9 per cent of the total disease burden and generates $7.6 billion in social costs to the community each year.[1]

Commercial interests benefit greatly from the supply of alcohol. However, although the social costs suggest that the supply should perhaps be more closely monitored or contained, profit motives inspire suppliers to head in the opposite direction. A balance needs to be struck between these two competing interests.

In Cole v South Tweed Heads Rugby League Football Club Limited & Anor,[2] the High Court considered whether a football club owed a duty of care to a patron who became intoxicated and later suffered injuries in a road accident. The club was successful, but the Court was divided in its approach.

The High Court approached the matter in three different ways. Gleeson CJ and Callinan J held that no duty of care was owed by the club. Gummow and Hayne JJ said that it was not necessary to decide the duty of care issue but that even if a duty of care was owed, there had been no breach of duty. In the minority were Kirby J and McHugh J who said that the club owed the customer a duty of care and that it had breached that duty.

The background

The football club held regular Sunday champagne breakfasts. Several matches were also played over the course of the day. Mrs Cole attended one of the breakfasts and “voluntarily and in full possession of her faculties, embarked on a drinking spree”[3] at about 9.30am or 10am.

She continued to drink well into the afternoon. The club supplied her with some, although not all, of the alcohol that she drank, including a bottle of wine at about 12.30pm. At about 3pm, the club refused to serve her alcohol because of her state of intoxication. She nevertheless stayed at the club during the afternoon.

At about 6pm, Mrs Cole was still in a drunken state and was with two men who were apparently sober. The club asked her to leave. Mrs Cole verbally abused the manager. Despite her abuse, she was offered a courtesy bus or a taxi to drive her home. However, both offers were refused. Instead, one of the male companions said “Leave it with us and we’ll look after her”.[4]

A short time later, Mrs Cole was alone and walking carelessly along a nearby roadway when she was struck by a vehicle driven by Mrs Lawrence and suffered serious injuries. Mrs Cole’s blood alcohol content was found to be 0.238gm per 100ml. It was estimated that to reach that level she would have had to consume about 16 standard drinks.

The trial judge apportioned liability for Mrs Cole’s injuries, as to herself 40 per cent, as to Mrs Lawrence 30 per cent and as to the club 30 per cent. Both Mrs Lawrence and the club successfully appealed to the Court of Appeal. In relation to the club, the Court of Appeal said that except for extraordinary cases, there is no duty of care to protect people from harm from intoxication following a deliberate and voluntary decision on their part to drink to excess.

Mrs Cole then appealed to the High Court in relation to the liability of the club. There were two principal arguments. First, she said the club supplied her with alcohol at a time when a reasonable person would have known that she was intoxicated. Second, she argued that the club allowed her to leave the premises when it was not safe for her to do so and in circumstances which involved a lack of adequate assistance.

The majority view

Gleeson CJ held that no duty of care was owed by suppliers of alcohol to customers. That view was essentially based on the values of personal autonomy, the privacy of consumers and freedom of action. According to his Honour, people can act as they please even if their actions lead to injury to themselves: “There are many forms of excessive eating and drinking that involve health risks but, as a rule, we leave it to individuals to decide for themselves how much they eat and drink”. [15][5]

At the same time, his Honour said that consumers of alcohol should not be able to avoid personal responsibility for the risks that flowed from their decision to drink. He noted that if Mrs Cole had damaged someone’s property she would have been held responsible for the damage.

Gleeson CJ also recognised that to impose a duty of care would involve “burdensome practical consequences”. [12] Some people respond quickly to alcohol while others can drink large quantities without any great change in their appearance or behaviour. As such, it would be very difficult to monitor customers. In any event, his Honour said that a supplier was restricted in what it could do. For example, “If a restaurant proprietor serves a bottle of wine to two customers at a table, the proprietor may not know what either of them has had to drink previously, the proportions in which they intend to share the bottle, or what they propose to do when they leave the restaurant. Few customers would take kindly to being questioned about such matters”. [12] His Honour also felt that in either a commercial or a social setting the consumer is in a much better position than the supplier to assess the risk of excessive drinking.

On the facts of Mrs Cole’s case, Gleeson CJ said that even if there was a duty of care there had been no breach by the club in the circumstances. In particular, Mrs Cole’s rejection of the offer of transport home would bear on the issue of causation.

Callinan J took a similar line. His Honour held that the club owed Mrs Cole only the ordinary general duty of care owed by an occupier to a lawful entrant and nothing more: “The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law”. [121]

His Honour also focused on practical issues. Mrs Cole may have been unlikely to have appreciated counselling or simple restraint. Forceful restraint may have caused a physical altercation.

If a duty of care was owed, then Callinan J thought that would call for “constant surveillance and investigation” [130] of the condition of patrons, and that might involve oral inquiries which would be an invasion of privacy.

Callinan J also said that even if a duty of care was owed, there had been no breach by the club. Any duty of care had been discharged by the club’s offer of the use of a courtesy bus or taxi.

Gummow and Hayne JJ said it was not necessary to decide whether the club owed a duty of care. In any event, they held that if the club did owe a duty of care then it discharged that duty by offering Mrs Cole transport home. Furthermore, even if the club owed a duty to take care in monitoring the amount that she drank, their Honours said that any breach of that duty did not cause her injuries.

Their Honours also pointed to some practical problems. For example, it can be difficult for a club to know how much an individual is drinking, particularly in a “large and shifting population”. [68] It is also difficult to monitor patrons if people can obtain alcohol by having other customers purchase it for them.

Their Honours also noted that there are different levels of intoxication. For instance, there is intoxication at the level of being able to drive a car as well as higher levels. As such, someone may be too drunk to drive but have no intention of driving home.

Gummow and Hayne JJ declined to decide whether a general duty of care was owed because they thought that such a process, by looking at hypothetical facts and analysing the issue in abstract terms, “either presents more questions than it answers, or is apt to mislead”. [81] They were concerned that if the question of the existence of a duty of care was framed in a simple way, then that would only serve “to obscure the complexities of the problems that lie beneath it”. [82]

The minority view

Kirby J was in favour of the existence of a duty of care. His Honour did not think that a rational system of law should allow commercial suppliers to wash their hands of legal responsibility.

As to notions of free will, individual choice and responsibility, Kirby J said that “Whatever difficulties free-will assumptions pose for the law in normal circumstances, such assumptions are dubious, need modification and may ultimately be invalidated”, [90] considering that the product being supplied was alcohol. Alcohol can negate any such free will.

According to Kirby J, “The law of tort exists not only to provide remedies for injured persons where that is fair and reasonable and consonant with legal principle. It also exists to set standards in society, to regulate wholly self-interested conduct and, so far as the law of negligence is concerned, to require the individual to act carefully in relation to a person who, in law, is a neighbour”. [91] He regarded the position of Gleeson CJ and Callinan J as a “withered view of community and legal neighbourhood”. [93]

Kirby J said that proper standards of reasonable care required the club to do more than it had. Although the “Club was not a kindergarten” [110], his Honour did not think it could be essentially indifferent to Mrs Cole’s obvious and serious intoxication.

McHugh J also said that a duty of care existed. In his Honour’s view, it was not necessary that the club should reasonably foresee the precise injury that Mrs Cole suffered or exactly how it was caused. It was sufficient if her injury and the infliction “were reasonably foreseeable in a general way”. [32]

According to McHugh J, “Like employers, teachers, professional persons, guardians, crowd controllers, security guards, jailers and others who have rights of control over persons, property or situations, the duty owed by clubs to entrants extends to taking affirmative action to prevent harm to those to whom the duty is owed. It may extend from the giving of advice and warnings to the forcible ejection from the premises of one or more of those present”. [34] Those actions were said to be “frequent characteristics of affirmative duties”. [35]

In relation to potential practical problems, McHugh J noted that many clubs and hotels already closely monitor and observe the condition and behaviour of patrons. Although it may be hard to judge those matters with mathematical precision, his Honour said that the relevant standard is one of reasonableness and precise measurements are unnecessary.

Postscript

In Canada, a person in control of licensed premises owes a duty of care to take reasonable precautions to avoid injuries to customers caused by their own voluntary and self-induced intoxication. For example, in Jordan House Limited v Menow,[6] Laskin J held that a hotel was under a duty to an injured customer “to see that he got home safely by taking him under its charge or putting him under the charge of a responsible person, or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself”.[7]

Some members of the High Court referred to Canadian authorities in passing, but the Court did not consider them in any substantive fashion.[8]

There are other authorities which were not considered by the High Court (except Kirby J), such as the decision of Derrington J in Johns v Cosgrave[9] where his Honour stated that “It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonable [sic] foreseeable that to do so would cause danger to the intoxicated party, such as, for example, where the intoxication is so gross as to cause incapacity for reasonable self preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this”.[10]

It is also important to note that Heydon J did not sit on the High Court Bench in these proceedings as he was a member of the Court of Appeal which heard the matter. However, his Honour’s views were largely similar to those of Gleeson CJ and Callinan J, and indeed passages from his judgment were quoted at length by Callinan J.

The issues in this case extend beyond the supply of alcohol and more generally to issues of personal autonomy and privacy. In today’s world, filled with advanced technology, consideration needs to be given to the extent to which people should intrude into the lives of other citizens.

The issues involved in the case are also significant in today’s already heated climate regarding the debate over rising insurance premiums. This was not explicitly referred to by the High Court, although Kirby J stated that if the existence of a duty of care led to an increase in insurance premiums then that “might stimulate a desirable change of culture and conduct”. [104]


MICHAEL EDELSTEIN is a solicitor who practises mainly in insurance and commercial litigation. He was previously a senior associate at Ebsworth & Ebsworth and a solicitor at the Australian Prudential Regulation Authority.


[1] Department of Health and Ageing.

[2] [2004] HCA 29 (15 June 2004). The numbers in square brackets in the article refer to the paragraph numbers in the judgment.

[3] Per Gleeson CJ at para 4, quoting from the trial judge.

[4] Per Gleeson CJ at para 22.

[5] See also Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360.

[6] (1973) 38 DLR (3d) 105.

[7] See also Mayfield Investments Limited v Stewart (1995) 121 DLR (4th) 222 and Solomon and Payne, “Alcohol liability in Canada and Australia: sell, serve and be sued” (1996) 4 Tort Law Review 188.

[8] These authorities had been discussed in more detail by the Court of Appeal.

[9] (1997) 27 MVR 110.

[10] Note 9 above at 114. See also Desmond v Cullen (2001) NSWCA 238. See also the subsequent decision in Lanahmede Pty Ltd v Koch [2004] SASC 204 (16 July 2004) where, although the facts were slightly different, the Full Court of the Supreme Court of South Australia referred to the views of McHugh J and Kirby J but failed to refer to the majority judgments. However, cf. Boyded Industries Pty Ltd v Canuto [2004] NSWCA 256 (30 July 2004) per Beazley JA, Santow JA and Stein JA at paras 4-5 where the general views of Gleeson CJ and Callinan J as to the personal responsibility of individuals were approved.

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