Common Law Duty of Care: Not my patron's keeper: High Court revisits alcohol server responsibility

Not my patron's keeper: High Court revisits alcohol server responsibility

Judgment date: 10 November 2009

C.A.L. No 14 Pty Limited t/as Tandara Motor Inn & Anor v Motor Accidents Insurance Board; C.A.L. No 14 Pty Limited t/as Tandara Motor Inn & Anor v Scott [2009] HCA 47

High Court of Australia1

In Brief

The proprietors of licensed premises and licensees do not owe a general common law duty of care to their patrons in relation to the consequences of alcohol served on their premises except in exceptional cases. An inquiry into breach is a prospective one and is separate to the enquiry in respect of duty. It must be made by asking, prospectively, what the exercise of reasonable care required is in response to a foreseeable risk of injury, not by retrospectively reasoning what the defendant could have done to prevent the injury in light of the precise circumstances of the injury. Background

On 24 January 2002 Shane Scott suffered fatal injuries when the motorcycle that he was riding ran off the road 700 metres from his house. His blood alcohol reading was 0.253 grams per 100 ml of blood and it was common ground that the accident occurred by reason of Mr Scott's consumption of alcohol.

He had earlier been drinking at the Tandara Motor Inn, Triabunna in Tasmania where he had consumed seven or eight cans of Jack Daniels and Cola since 5.15pm. Between 6.00pm – 6.30pm a rumour had circulated that there was a police breathalyser or speed camera near Mr Scott's home which was situated about 7 kilometres away. An arrangement was made with the Licensee whereby Mr Scott handed over the keys to the motorcycle to the Licensee and the motorcycle was stored in a lockable room. The Licensee understood that Mr Scott would telephone his wife in order to pick him up when he was ready to leave and that the motorcycle would be collected the next day.

At approximately 8.00pm the Licensee refused further service to Mr Scott and asked for his wife's telephone number so that he could telephone her to collect him. Mr Scott swore at the Licensee and refused to provide his wife's telephone number. Mr Scott asked for his keys to be returned, following which time the Licensee asked Mr Scott a number of times whether he was "right to ride". Mr Scott said that he was and accordingly the motorcycle and the keys were released to him. Mr Scott left the Inn at about 8.30pm shortly after which time he was involved in the fatal accident.

Mr Scott's wife, Sandra Scott, instituted...