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Posted on Nov 12, 2009 in Miscellaneous

Whether a supplier of alcohol owes a duty of care to a patron..

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ELEANOR HALL: Senior Lecturer*(see editor’s note) Pamela Stewart from the University of Technology in Sydney followed the Tasmanian case closely.

She told Michael Vincent that she was surprised that the High Court’s decision was unanimous.

PAMELA STEWART: They’ve certainly been quite definite about saying that generally a supplier of alcohol doesn’t owe a duty of care to a patron who’s intoxicated and leaves the hotel. They used that word “generally” there is no such duty of care.

Bu they’ve kind of left the door open just ever so slightly. They’re not going to say that there can never in any circumstances be a duty of care.

MICHAEL VINCENT: What about their definitions of intoxication or inebriation that they basically say they’re too hard to define.

PAMELA STEWART: They did. They made the point that it’s almost impossible for a publican or a barman to know when a patron is intoxicated or drunk or, you know, they went through various terms and said there are all sorts of descriptors for people who have had too much to drink but it is a very difficult thing for the average barman to know whether someone is so intoxicated that they might be a danger to themselves.

MICHAEL VINCENT: And yet most barmen are legally required to do that under the Liquor Act of each State.

PAMELA STEWART: They are indeed. They are required to make a judgement about the level of somebody’s intoxication and to cease serving them liquor in the event that they are intoxicated so it does seem difficult.

MICHAEL VINCENT: The Australian Hotels Association is warning people not to take this as a ruling to go out and get plastered. Is that how you see it as well?

PAMELA STEWART: Well, yes, indeed. What happened to Mr Scott, I suppose, is it’s instructive for anybody who goes to a pub and has a drink. A tragic end really to an evening but one of the things the High Court was really concerned about in Scott was the idea of the autonomy of the individual. The idea that a person is really responsible for their own situation and the High Court takes the view really that the law of tort or the law of negligence should not override, if you like, the autonomy of the individual. That we all have control of our own destiny, if you like.

MICHAEL VINCENT: And yet in other professions, if you’re provided a mood altering substances by a doctor or a pharmacist or someone else, they are entirely, it appears they would be largely responsible for your behaviour following the administering of that substance.

PAMELA STEWART: Yes assuming their duty is that, if they give you a substance of that kind, their duty is to warn you about all the possible effects that it might have. That’s right. That is true. The alcohol server is in a very special position and some would say has been protected to a very great extent by the High Court.

MICHAEL VINCENT: Simply because of the number of, I suppose, pubs and drinkers in Australia? Is that the possibility or?

PAMELA STEWART: Well I guess it’s a possibility. I mean the High Court doesn’t address those kinds of issues. But I suppose there is really an underlying, I suppose you might say a policy issue that people choose to drink and a lot of drinking goes on in pubs and clubs all over Australia and to make the clubs and pubs responsible to patrons who are injured as a result of their intoxication, well it could have some pretty astonishing effects on our society generally, not to mention on the insurance premiums that pubs and clubs would have to pay.

ELEANOR HALL: That’s Senior Lecturer Pamela Stewart, a specialist in tort law from the University of Technology in Sydney, and she was speaking to Michael Vincent.ELEANOR HALL: Senior Lecturer*(see editor’s note) Pamela Stewart from the University of Technology in Sydney followed the Tasmanian case closely.

She told Michael Vincent that she was surprised that the High Court’s decision was unanimous.

PAMELA STEWART: They’ve certainly been quite definite about saying that generally a supplier of alcohol doesn’t owe a duty of care to a patron who’s intoxicated and leaves the hotel. They used that word “generally” there is no such duty of care.

Bu they’ve kind of left the door open just ever so slightly. They’re not going to say that there can never in any circumstances be a duty of care.

MICHAEL VINCENT: What about their definitions of intoxication or inebriation that they basically say they’re too hard to define.

PAMELA STEWART: They did. They made the point that it’s almost impossible for a publican or a barman to know when a patron is intoxicated or drunk or, you know, they went through various terms and said there are all sorts of descriptors for people who have had too much to drink but it is a very difficult thing for the average barman to know whether someone is so intoxicated that they might be a danger to themselves.

MICHAEL VINCENT: And yet most barmen are legally required to do that under the Liquor Act of each State.

PAMELA STEWART: They are indeed. They are required to make a judgement about the level of somebody’s intoxication and to cease serving them liquor in the event that they are intoxicated so it does seem difficult.

MICHAEL VINCENT: The Australian Hotels Association is warning people not to take this as a ruling to go out and get plastered. Is that how you see it as well?

PAMELA STEWART: Well, yes, indeed. What happened to Mr Scott, I suppose, is it’s instructive for anybody who goes to a pub and has a drink. A tragic end really to an evening but one of the things the High Court was really concerned about in Scott was the idea of the autonomy of the individual. The idea that a person is really responsible for their own situation and the High Court takes the view really that the law of tort or the law of negligence should not override, if you like, the autonomy of the individual. That we all have control of our own destiny, if you like.

MICHAEL VINCENT: And yet in other professions, if you’re provided a mood altering substances by a doctor or a pharmacist or someone else, they are entirely, it appears they would be largely responsible for your behaviour following the administering of that substance.

PAMELA STEWART: Yes assuming their duty is that, if they give you a substance of that kind, their duty is to warn you about all the possible effects that it might have. That’s right. That is true. The alcohol server is in a very special position and some would say has been protected to a very great extent by the High Court.

MICHAEL VINCENT: Simply because of the number of, I suppose, pubs and drinkers in Australia? Is that the possibility or?

PAMELA STEWART: Well I guess it’s a possibility. I mean the High Court doesn’t address those kinds of issues. But I suppose there is really an underlying, I suppose you might say a policy issue that people choose to drink and a lot of drinking goes on in pubs and clubs all over Australia and to make the clubs and pubs responsible to patrons who are injured as a result of their intoxication, well it could have some pretty astonishing effects on our society generally, not to mention on the insurance premiums that pubs and clubs would have to pay.

ELEANOR HALL: That’s Senior Lecturer Pamela Stewart, a specialist in tort law from the University of Technology in Sydney, and she was speaking to Michael Vincent.

Source: ABC Australia. The World Today

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