Ms Cole and the alcohol
by Tom Young and Michelle Russell
Queensland’s Chevron Hotel case stretches the duty of care owed by publicans to their drunken patrons so far that publicans must ensure that patrons have a safe journey home. The practicalities involved in adhering to this duty make it onerous and very difficult to manage. In New South Wales however, publicans and bar tenders can loosen their belts for a while after the recent NSW Court decision in Cole’s Case promises to make drunken patrons more responsible for themselves. If a person sets out to get drunk on NSW licensed premises, it is no longer the publican’s fault if that person is injured on his or her way home. An application to appeal the NSW court decision is currently before the High Court. If the High Court refuses the appeal, publicans in Queensland may get the same break.How can a publican discern whether each individual patron is intoxicated or not so that the publican will know when to discontinue serving alcohol?
The duty of care in Queensland
The 1997 Chevron Hotel case sent a shockwave through the Queensland liquor industry when a Surfers Paradise hotel had to pay $125,000 damages to a heavy drinking regular who was hit by a car while waiting at a bus stop across the highway from the hotel. The judge held that due to a combination of circumstances where the hotel staff continued serving their drunken patron while knowing that he would have to cross a busy highway to catch a bus home, plus the staff’s failure to provide him with a safer alternative means of transport, the hotel had negligently contributed to the dangerous situation that caused the patron’s injuries.
According to Chevron Hotel, a publican is not automatically liable for getting a patron drunk. However, liability will arise if a publican continues to serve a drunken patron alcohol to the point where that patron has lost self control and the publican knows, or should know, that without intervention the patron may be placed in a dangerous situation such as being injured while catching the bus home.
So long as Chevron Hotel remains the high water mark for Queensland law, the best publicans can do is to make sure their staff are fully aware of their duties in relation to the responsible serving of alcohol. But in the meantime, there is promise that this law may be reviewed due to a similar case in NSW.
What happened to Ms Cole in NSW?
The facts of the case involve a drunken binge by the plaintiff, Ms Cole, and her friend. They both began drinking free Spumante at a ‘champagne breakfast’ being held by the South Tweed Heads Rugby League Club on 26 June 1994. After the free Spumante ran out, they started buying their own. Four hours later, Ms Cole’s friend left the Club but Ms Cole stayed on until well after five. Although the Club staff refused to serve her alcohol from about 2pm on, by the time Ms Cole left in the evening, she was very drunk.
To cut a long story short, after seeing Ms Cole staggering, slurring her speech and “grabbing men”, the Club Manager tried to make her leave by offering her a taxi ride or the club courtesy bus home. Instead of accepting the ride, Ms Cole verbally abused the Manager then joined a group of patrons who said they would ‘take care’ of her. A short time later, the Manager noticed that Ms Cole and the group had left the Club.
At about 6:20pm that evening, Ms Cole was run over by a 4-wheel drive as she walked along a dimly lit road not too far from the Club.
The NSW court cases
The first judge to hear this matter referred to the duty of care established in Chevron Hotel but set the duty even higher. The judge held that the South Tweed Heads Rugby League Club owed a duty of care not to serve a patron who was already intoxicated or likely to become so. Although the Club Manager attempted to ensure Ms Cole a safe ride home, the judge said the Manager did not try hard enough and found the Club liable for 30% of Ms Cole’s injuries. The Club successfully appealed against this harsh judgement in July 2002 to the delight of the NSW liquor industry.
The NSW Court of Appeal essentially rejected the first judge’s decision and in contrast, lowered the point at which a publican owes its patron a duty of care to below the standard set by Chevron Hotel. The Court held that a publican does not owe a duty of care to prevent a patron becoming intoxicated and except for “extraordinary situations”, publicans do not owe a duty of care to a person who deliberately and voluntarily sets out to get drunk. The Court held that Ms Cole was owed no duty by the Club.
Of particular interest in Cole’s Case is the court’s recognition of the practical difficulties imposed on a publican in complying with an extended duty of care. The court acknowledged that such duties give rise to an ‘infinite variety’ of problems including the following:
How can a publican police an intoxicated person’s consumption of alcohol when another (more sober) person might continue to supply the intoxicated person with alcohol?
What is to be done when a publican notices that a patron is intoxicated? Ejecting the person from the premises means placing that person in danger and, if the patron refuses an offer of safe transport, what further action should the publican take to force a patron to take the offer?
What if an intoxicated patron indicates that he or she wishes to indulge in some sexual activity with persons who look as if they may take advantage of the vulnerability of the patron concerned? Does the publican have a duty to intervene?
The court made it clear that any law imposing puzzling and uncertain duties of care on persons going about their ordinary daily life contradicts community values, commonsense and the law’s purpose of keeping good order.
The impact of Cole’s Case upon Queensland law will be determined in April 2003 when the High Court of Australia considers whether to hear an appeal lodged by Ms Cole against this decision.
What a High Court appeal could mean to your business
If the High Court hears and rejects Ms Cole’s appeal, then the High Court will have reinforced the decision made by the NSW Court of Appeal. Due to the hierarchy system that operates between the courts, the High Court’s decision on Cole’s Case would then cover all Australian cases on the matter instead of being only applicable to NSW law.
Legally speaking, such a decision represents the law’s reversion to imposing only occupier liability standards on publicans. This was the legal position before Chevron Hotel. Practically speaking, the responsibility of a Queensland publican in serving alcohol would be owed only to those persons remaining on the licensed premises.
Queensland publicans will be able to sleep easier knowing their liability for drunken patrons would be reduced to that currently enjoyed by NSW publicans. What this could mean to your business is lower insurance premiums, less damages payouts and probably more money for you.
However, until the High Court decides Cole’s Case, Queensland hoteliers must continue to observe a particularly onerous duty of care to its patrons. If one of your patrons becomes intoxicated at your licensed premises, you must take care to do everything reasonably possible to ensure that patron gets home safely.