Cole v South Tweed Heads Rugby League Football Club Ltd

Case [2004] HCA 29

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

ROSELLIE JONNELL COLE  APPELLANT

AND

SOUTH TWEED HEADS RUGBY LEAGUE FOOTBALL
CLUB LIMITED & ANOR  RESPONDENTS

Cole v South Tweed Heads Rugby League Football Club Limited

[2004] HCA 29

15 June 2004
S403/2003

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with E G Romaniuk and P J Woods for the appellant (instructed by Hamilton Quinlan Fenwick)

D F Jackson QC with R J Carruthers for the first respondent (instructed by Colin Biggers & Paisley)

No appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cole v South Tweed Heads Rugby League Football Club Limited

Negligence – Duty of care – Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state – Level of specificity of formulation of duty of care – Whether respondent owed duty to take reasonable care to monitor and moderate amount of alcohol served to appellant – Whether respondent owed duty of care to take reasonable care that appellant travelled safely away from respondent's premises – Whether duty of care existed to protect persons from harm caused by intoxication following deliberate and voluntary decision on their part to drink to excess – Whether duty took into account the vulnerability of some persons to alcohol consumption – Relevance of statutory provisions, creating offences in relation to conduct on club premises and requiring police to eject intoxicated persons from premises, to existence or content of duty of care owed by respondent where no allegation made of breach of statutory duty – Registered Clubs Act 1976 (NSW).

Negligence – Breach of duty and causation – Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state – Whether respondent's offer of safe transport to appellant discharged any duty owed by respondent to take reasonable steps for appellant's safety – Whether assurance by other patrons that they would look after appellant discharged any onus on respondent – Whether, assuming respondent in breach of duty to monitor and moderate consumption, breach of duty was a cause of injuries ultimately sustained – Remoteness of damage – Reasonable foreseeability.

Words and phrases – "intoxication".

Registered Clubs Act 1976 (NSW), ss 44A, 67A.

  1. GLEESON CJ.   The appellant, having suffered personal injuries, claims that the first respondent is liable to her in damages for negligence[1].  In the circumstances of this case, it is of little assistance to consider issues of duty of care, breach, and damages, at a high level of abstraction, divorced from the concrete facts.  In particular, to ask whether the respondent owed the appellant a duty of care does not advance the matter.  Before she was injured, the appellant was for some hours on the respondent's premises, and consumed food and drink supplied by the respondent.  Of course the respondent owed…

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Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29
Case
[2004] HCA 29
Decision Date

CaseChat Overview and Summary

The case of *Cole v South Tweed Heads Rugby League Football Club Ltd* involved an appeal to the High Court of Australia concerning a claim in negligence. The appellant, Ms Cole, suffered serious injuries when she was struck by a motor vehicle shortly after leaving the respondent club's premises in a state of severe intoxication. The central dispute revolved around whether the club owed a duty of care to Ms Cole to prevent her from becoming excessively intoxicated and to ensure her safety after she left the premises.

The High Court was required to determine whether the respondent club owed a duty of care to the appellant to take reasonable steps to monitor and moderate the amount of alcohol served to her, and to ensure her safe departure from the premises. A key legal issue was whether such a duty of care could exist to protect individuals from harm caused by their own voluntary intoxication, particularly when the intoxication was self-induced to a significant degree. The court also considered the relevance of statutory provisions governing registered clubs and the conduct of intoxicated persons on their premises, even in the absence of an allegation of breach of those statutory duties.

The High Court, in a majority decision, found that the respondent club did owe a duty of care to the appellant. The reasoning emphasised that while voluntary intoxication is a factor, it does not absolve suppliers of alcohol, who have a commercial interest in its sale, from all legal responsibility. The court acknowledged the impairing effects of alcohol on judgment, co-ordination, and reaction times, noting that these effects can diminish an individual's capacity for self-care. The majority concluded that the club, by having economic and physical control over the supply of alcohol on its premises, had a common law duty to take reasonable steps to moderate the supply to patrons who became excessively intoxicated and to ameliorate the consequences of such supply when it was clear the patron was unable to ensure their own safety. The primary judge's findings that the club had breached this duty and that the breach was a cause of the appellant's injuries were upheld.

The appeal was allowed, and the judgment in favour of the appellant against the respondent club was restored, with costs awarded to the appellant.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HUGH J (dissent) GUMMOW AND HAYNE JJ KIRBY J (dissent) CALLINAN J
A rational system of law will recognise these differentials. It will not allow suppliers, who have a commercial interest in supplying alcohol to consumers, to wash their hands of legal responsibility for the safety of those to whom the alcohol they supply becomes the cause of serious injuries. That is what the appellant alleges happened in her case.Conclusions at trial and on appeal The primary judge in the Supreme Court of New South Wales (Hulme J)[18] approached the contest between Mrs Cole (the appellant) and the respondent Club ("the Club") with the foregoing realities in mind. He found that the Club, with relevant statutory duties and with economic and physical control over the supply of alcohol to patrons on its premises, owed the appellant a duty of care in accordance with the common law of negligence. He concluded that the Club had breached its duty of care and was partially the cause of the serious injuries suffered by the appellant. Those injuries were a result of the appellant's disorientation on a public road 100 metres from the Club's premises soon after she had left those premises in a serious state of intoxication.[18]Cole v Lawrence (2001) 33 MVR 159. On the evidence proved in this case, the primary judge was entitled to reach the conclusions of fact and law that he did. The Court of Appeal was not warranted to disturb the judgment which the appellant recovered against the Club. This Court is not concerned with the issue of the liability of the driver of the motor vehicle that struck the appellant. However, the judgment at trial in favour of the appellant against the Club should be restored.The Club owed the appellant a duty of care Two central problems were said to stand in the way of recovery by the appellant. The first was the suggested absence of a duty of care owed in law to a person in the position of the appellant to ensure that she did not become so seriously intoxicated that she might be confronted with the foreseeable risks of the kind that befell her and, if she did become so intoxicated, to ensure that she was taken home or to some other safe place where she could recover further from the alcohol-induced intoxication before venturing beyond the Club's premises to circumstances potentially of great danger. The reasons of Gummow and Hayne JJ ("the joint reasons") prefer to postpone resolution of the issue of the duty of care although hinting at difficulties which their Honours see in its availability[19]. The reasons of Gleeson CJ[20] and Callinan J[21] deny the existence of a duty of care. Their Honours' reasons are, with respect, replete with expressions reflecting notions of free will, individual choice and responsibility[22]. This is reinforced in the reasons of Callinan J by his Honour's references to the opinion of Heydon JA in the Court of Appeal from which the appeal comes[23]. Whatever difficulties free-will assumptions pose for the law in normal circumstances[24], such assumptions are dubious, need modification and may ultimately be invalidated having regard to the particular product which the Club sold or supplied to patrons such as the appellant, namely alcoholic drinks. The effect of that product can be to impair, and eventually to destroy, any such free will. This fact imposes clear responsibilities upon those who sell or supply the product in circumstances like the present to moderate the quantity of the supply; to supervise the persistent sale or supply to those affected; and to respond to, and ameliorate, the consequences of such sale or supply where it is clear that the recipient has consumed enough of the product to be in a temporary state of inability to take proper care for his or her own safety. On the findings of the primary judge, such was the case of the appellant.[19]Joint reasons at [57], [59], [65]-[73].[20]Reasons of Gleeson CJ at [18].[21]Reasons of Callinan J at [125].[22]Reasons of Gleeson CJ at [13]-[14]; see also for an example the statement in the joint reasons at [78]: "The appellant was an adult woman … [in a] state of intoxication she had induced in herself." (emphasis added)[23]Reasons of Callinan J at [130] referring to South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at 115-116 [4]-[7].[24]See eg discussion of one such difficulty in Taylor, "Should Addiction to Drugs be a Mitigating Factor in Sentencing?", (2002) 26 Criminal Law Journal 324 citing R v Smith [1987] 1 SCR 1045 at 1053; Lawrence (1988) 10 Cr App R (S) 463.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW AND HAYNE JJ, CALLINAN J

In his report received into evidence, Dr Starmer, an expert pharmacologist, explained features of such alcohol consumption that are largely within common knowledge. He summarised its elements:"Alcohol exerts its major effects on the structures of the brain which are responsible for balance and co-ordination. Alcohol also affects mental and cognitive ability (ie judgement, reasoning, memory). Alcohol reduces peripheral awareness as well as impairing speed and distance judgements. The ability to successfully divide attention between two or more inputs is significantly degraded at blood alcohol concentrations as low as 0.05g/100ml and impairment increases exponentially with rising blood alcohol concentration. Glare resistance is also reduced under alcohol and perspective is distorted. In many collisions involving alcohol-intoxicated pedestrians, although the pedestrian has been shown to have detected the presence of an oncoming vehicle, she has continued to cross the road. This has usually been attributed to an alcohol-induced increase of the time-intervals between detection, decision and action. Another feature common to many such collisions is an increase in uncertainty on the part of the intoxicated pedestrian. Often, the pedestrian realises her miscalculation and stops or hesitates just before the impact. If an avoidance strategy is decided upon, then the intoxicated pedestrian experiences other difficulties, in terms of decreased agility and lack of co-ordination. These deficits taken together with increased perception and reaction times, substantially reduce the chances of successfully avoiding an impact."The proper operation of the law of tort Either this Court accepts that the law imposes a duty of care on those in effective control in such circumstances (the Club and its employees) or it transfers responsibility solely to a person whose capacity to exercise responsibility had been repeatedly and seriously diminished over a very long time by the type of conditions that existed in the Club's premises, as described in the evidence. If responsibility – even partial – is imposed on the Club by the law of negligence a message is sent that control is not just a formal duty imposed on the Club and its officers by Parliament and by statutory offences unlikely to be prosecuted often. A holding of liability in negligence would reinforce such duties[36] by visiting civil consequences that would sound in direct liability to the injured, with a resulting increase in insurance premiums that might stimulate a desirable change of culture and conduct. The Club's eventual response to the appellant's conduct can be seen for what it was: an instance of too little, too late. By their decision, the majority of this Court tolerate and perpetuate this state of affairs. I dissent from their view. It is not the concept of the law of tort that I hold.[36]Young, "Dram Shop Liability: A Sobering Thought for Licensees", (1998) 18(1) Proctor 30 at 33. Some Australians find such drunkenness amusing and socially tolerable. Sometimes, in certain environments and some degrees, it may be so. But the picture portrayed in the case of the appellant's behaviour at the Club's premises is of a human being who eventually became profoundly affected by alcohol over an extremely long period, actually ill, and was effectively turned out of the Club's premises drunk, on the flimsy possibility that new-found male companions would "look after" her. Unsurprisingly, given her condition, they did not do so. Soon after, she was wandering onto the highway where she was struck by a motor vehicle and seriously injured. This consequence was readily foreseeable if not inevitable. Certainly, it was one of a number of serious risks that it was open to the primary judge to conclude were reasonably foreseeable in the circumstances.