Macrossans Lawyers Brisbane law firm

Since the High Court decision of 2004  Cole v South Tweed Heads Rugby League Football Club Ltd, the liability of a hotelier to an intoxicated person has stirred great interest. In January 2009, The Full Court of the Supreme Court of Tasmania took another view of  this topical issue in the case Scott v CAL No 14 Pty Ltd (No 2).

The critical issue in the Tasmanian case was whether a hotelier owed an intoxicated patron a duty of care to prevent the patron suffering harm caused by the patron's own intoxication.

FACTS - Tasmanian Case

On 24 January 2002, Mr Scott (now deceased) had been drinking at the Tandara Motor Inn. The licensee, Mr Kirkpatrick, allowed Mr Scott , who frequented the Motor Inn, to store his motor cycle in a hotel storeroom. The deceased gave Mr Kirkpatrick his keys to the bike and they were placed in a petty cash tin. 

Having decided that it was time for Mr Scott to leave, Mr Kirkpatrick asked Mr Scott for his wife's telephone number so that she could come and collect him. Mr Scott became argumentative and refused to give the telephone number.

Mr Scott asked Mr Kirkpatrick for the keys to the motor cycle and they wre handed over to him. Mr Kirkpatrick unlocked the storeroom door and the deceased rode away.

With a Blood Alcohol Content of 0.253, the Mr Scott's ability to drive the motor cycle was greatly impaired by his intoxication. On his way home, Mr Scott lost control of his motor cycle, collided with a bridge and was killed. 

THE DECISION

The majority of the court held that a duty of care was owed to Mr Scott by Mr Kirkpatrick and, through him, the hotel. The duty of care imposed on Mr Kirkpatrick was to take reasonable care to avoid Mr Scott  riding the motor cycle from the hotel whilst intoxicated. By returning the motor cycle to Mr Scott  so that he could drive, Mr Kirkpatrick breached his duty.

Justice Evans noted that the hotelier and patron relationship between Mr Kirkpatrick and Mr Scott was only one aspect of their relationship. Mr Kirkpatrick was also involved with Mr Scott's  arrangements to get home, that is, that Mr Scott's wife would be called to come and collect him. Further, Mr Kirkpatrick assisted Mr Scott to put the motor cycle into the locked hotel storeroom. Mr Kirkpatrick also had the keys to the motor cycle which he placed in the petty cash tin. It was found that Mr Kirkpatrick was in a position of control in relation to the motor cycle. It was stated that this went way beyond the normal relationship between hotelier and patron.

It was decided that a reasonable person in the circumstances of Mr Kirkpatrick should have refused to hand over the motor cycle and telephoned Mr Scott's wife to collect him.

PRACTICAL RELEVANCE

The specific circumstances in the Tasmanian case and the actions of Mr Kirkpatrick determined that in this case a duty of care was owed. In Cole v South Tweed Heads Rugby League Football Club Ltd it was determined that a hotelier's duty of care to a patron does not generally require the taking of care to prevent harm caused by the patron's own intoxication and this remains the case.