Parrington v Hotelcorp Pty Ltd

[2003] NSWSC 734

CITATION:	Parrington v Hotelcorp Pty Ltd & Ors [2003] NSWSC 734
HEARING DATE(S):	29, 30 & 31 July 2003
JUDGMENT DATE:	18 August 2003
JUDGMENT OF:	Cripps AJ
DECISION:	Judgment for the defendants. The plaintiff to pay the defendants' costs.
CATCHWORDS:	Negligence - service of alcohol in a hotel - accident caused by inebriation - liability of hotel.
CASES CITED:	Desmond v Cullen (2001) 34 MVR 186; Johns v Cosgrove (1997) 27 MVR 110; Jordan House Ltd v Menow (1973) 38 DL (3d) 105; Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222; Reynolds v Katoomba All Services Club Pty Ltd (2001) 53 NSWLR 43. Tweed Heads Rugby League Football Club v Cole (2002) 55 NSWLR 13;
PARTIES :	Francine Parrington - Plaintiff Hotel Corportion Pty Ltd - First Defendant Peter George Calligeros - Second Defendant Colin Picton - Third Defendant Kim Picton - Fourth Defendant
FILE NUMBER(S):	SC 20803/01
COUNSEL:	G B Hall QC & J R Wilson - Plaintiff G Inatey SC & B McManus - Defendants
SOLICITORS:	Lamond Howard & Associates, Goulburn - Plaintiff Collin Biggers & Paisley - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

Monday 18 August 2003

20803/01 PARRINGTON v HOTELCORP PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: At about 8.20 pm on 10 November 2000 the plaintiff was seriously injured when a car driven by her collided with a tree on the southern side of Carlisle Street, Yanderra. As a result of the accident the plaintiff was seriously injured and lost her right arm. At the time of the accident she was 34, married and the mother of three children. She has since been divorced

2 While in hospital and two or three hours after the crash her blood was analysed and found to have an alcoholic concentration of .118 gms per 100 mls. That reading placed her well above what has been referred to as the “legal limit”. It is an offence for a person to drive a car having a blood alcohol concentration in excess of .05 gms per 100 mls.

3 It appears to be accepted by the two pharmacologists who gave evidence that at 8.20 pm the reading would have been higher because although she had nothing to drink after the accident she was in a state of shock which would have lowered the rate of alcoholic metabolism and she had lost blood containing alcohol and had it replaced with alcohol free blood. But as Professor Starmer, called on behalf of the plaintiff, has said “How much higher it might have been is open to question” and Dr Dauncey, called on behalf of the defendants, thought “at a rough guess” it would have been between .13 and .14 gms per 100 mls.

4 On 21 September 2001 the plaintiff commenced proceedings in the Supreme Court against Hotelcorp Pty Ltd (the owner of the Bargo Hotel), Peter George Calligeros (the licensee) and Colin Picton and his wife Kim Picton (the managers). It was alleged that all defendants owed “a general duty of care to those people coming upon their hotel premises for their safety and wellbeing and similarly owed the same duty of care to patrons when they had been on the hotel”.

5 Relevant to the existence and scope of the duty allegedly owed by the defendants to the plaintiff as well as to allegations of breach was the circumstance, as alleged by the plaintiff, that she was lent money “by the hotel” which she used to consume “a large amount of alcohol”.

6 Particular breaches of duty alleged were that the defendants -

(a) “failed to comply with industry guidelines relating to the responsible service of alcohol”;

(b) “failed to comply with the Liquor Act (NSW) regarding responsible service of alcohol”;

(c) “failed in its [sic] duty to the Plaintiff in continuing to serve her alcohol when she was intoxicated”;

(d) “failed to provide any or any adequate instructions to employees of the Hotel concerning appropriate methods of serving alcohol”;

(e) “loaned money to the Plaintiff to continue drinking at the Hotel when the Defendants knew or ought to have known that the Plaintiff was driving a motor vehicle”;

(f) “failed to offer the plaintiff alternative means of transport for the Plaintiff to return home”;

(g) “failed in its [sic] duty to the Plainitff to allow her to drive a motor vehicle when they knew she was intoxicated”; and

(h) “failing in its [sic] duty to the Plaintiff in encouraging her to continue consuming alcohol by loaning her money for that specific purpose”.

7 It is the plaintiff’s case (and not disputed by the defendants) that the accident was the result of the plaintiff’s inebriated condition. The extent of her inebriation and where alcohol was drunk and who served her on the day of the accident were issues between the parties.

8 The plaintiff had consumed alcohol at five places on the day of her accident. She had drunk at the Mittagong RSL Club that morning. She was at the Bargo Hotel between 1.30 pm and 3.00 pm, at the Bargo Bowling Club for approximately one hour between 4.00 pm and 6.00 pm, at the Bargo Hotel between 6.00 pm and 7.30 pm or a little later and finally at about 7.45 pm at the home of her mother-in-law who saw her open and drink from a can of VB Bitter.

9 The plaintiff has no recollection of the day of the accident. She said that prior to 10 November 2000 and on approximately three Saturdays out of four she visited the Bargo Hotel and “drank to excess”. However, as she put it, her dancing was not affected and “I never got to the stage, I don’t think, where I was falling over”. She said that ordinarily she would drink “probably 6 to 8 cans of Bacardi and Cola” and that Colin and Kim Picton were present on some occasions when she drank to excess.

10 She said when she drank to excess she often drove her car. She said she understood the dangers of driving in that condition and the risk she posed to herself and others. In fact she had an accident at the same place as the subject accident when her car ran off the road as a result of her inebriation some twelve months before the subject accident. She said she was able to ”hold her liquor fairly well” and that ordinarily she presented as a “bubbly sort of personality”.

11 The last persons to see her before the accident were her sister-in-law Cheryl Parrington and her mother-in-law, Fay Parrington. She had been drinking with Cheryl Parrington at the Bargo Hotel. She left the hotel, as I find, some time after 7.30 pm but before 8.00 pm and drove Cheryl to her mother’s home about one kilometre from the Bargo Hotel. The accident occurred about two kilometres from Fay Parrington’s house and on the route the plaintiff would have taken to drive home.

12 The plaintiff’s movements on the day of the accident and the state and extent of her inebriation were the subject of evidence from Kim Owen, a friend, her now partner, Kerry Lund, Jerome Samuels, who was present in the hotel when she left with her sister-in-law shortly after 7.30 pm and Fay Parrington, her mother-in-law.

13 Kim Owen has said that she rang the plaintiff at her home and asked her to join her at the Bargo Hotel which she did at about 1.30 pm. Kim Owen said that the plaintiff told her that earlier that days he had been at the Mittagong RSL Club where she had had a drink and put some money in a poker machine.

14 It does not seem to be disputed that at the Bargo Hotel she drank three cans of Bacardi and Coke. No evidence was given concerning the size of the cans but the parties appeared to accept that they were 375 mls and evidence was given that each can contained 5 per cent alcohol. There was evidence that shortly after arriving at the hotel she borrowed $50 from the manager of the hotel. It was put to Mr Lund that he was mistaken in the evidence he gave in support of the plaintiff’s case but no evidence was called rebutting his evidence and no explanation was furnished as to why that evidence was not called. Accordingly, I find a loan was made and I infer the plaintiff used it to buy two of the three drinks referred to above.

15 The plaintiffs whereabouts between 3.00 pm and 6.00 pm are not precisely known. She left the hotel at about 3.00 pm (at which stage nobody says she was adversely affected by liquor) to collect her daughter, Olivia, from school. At 4.00 pm she visited her mother-in-law Fay Parrington to see if she would mind Olivia and told her that she and Cheryl Parrington were going to the Bargo Bowling Club. Fay Parrington, whose evidence I accept, said she first saw her at 4.00 pm and later “close to 5.00 when she bought Olivia back with her. She said the plaintiff had told Cheryl “to hurry up” and that they were going to “the club”, which she understood to mean the Bargo Bowling Club.

16 The plaintiff returned to the hotel at about 6.00 pm with Cheryl Parrington and remained there until a little after 7.30 pm. According to Kim Owen, who saw her at about 6.00 pm and again at 7.30 pm the plaintiff “didn’t seem drunk”. No questions were asked of Kim Owen concerning her own state of sobriety and I am asked, by the defendants to assume that the appearance the plaintiff gave to Kim Owen was the appearance she would have given to anyone working in the hotel during that time. Jerome Samuels has given evidence that he saw her with a can in her hand and she was “swaying around”. He formed the view that she was not fit to drive and said he said “Fran, you’re mad if you are going to drive” and she said “Yeah, well I always do. So, you know, I’m driving”. Mr Samuels admitted he had been affected by liquor and said that between 3.00 pm and 6.00 pm he had consumed between 6 and 8 schooners of VB beer.

17 The plaintiff’s mother-in-law, Fay Parrington, noticed her daughter-in-law was affected by alcohol when she saw her at 4.00 pm and later, a little after 7.30 pm when she drove Cheryl home. At that time the plaintiff opened and drank from a can of VB beer. At 4.00 pm she said the plaintiff “appeared to have some alcohol in her system” and that this conclusion derived from “the look on her face her eyes, you could tell”.

18 Although it was not put to Ms Owen that she was affected by alcohol I cannot ignore the fact that she appears to have been drinking throughout most of the afternoon. I do not regard either Kim Owen’s evidence or Mr Samuels’ evidence as reliably probative of her state of intoxication. I accept the evidence of Fay Parrington that when she saw her at 4.00 pm it was obvious she had been drinking and, it would follow, I infer, that it would have been obvious to a non-drinking observer that the plaintiff was affected by alcohol between 6.00 pm and 7.30 pm although how much of that was due to what she drank at the Bargo Hotel and how much of what she drank at the Bargo Bowling Club is not clear.

19 As I have said I find that the plaintiff borrowed $50 shortly after 1.30 pm. As I find she bought two drinks at $6 a drink. I am asked to infer that she borrowed another $50 when she went back to the hotel with her sister-in-law at about 6.00 pm. The evidence derives from a statement in Dr Dauncey’s report in which she (Dr Dauncey) refers to a statement of Cheryl that -

“At approximately 4.00 pm Francine arrived at my mother’s house where I was living at the time … Francine indicated she had been to the Bargo Hotel during the afternoon prior to picking up her child. At this time Fran and myself drove in Fran’s car to the local bowling club. Fran was driving. She did not at this time present as being intoxicated. We stayed at the bowling club for approximately one hour. Fran’s husband Steve, my brother, was also at the club. When we left the club Fran drove us to the Bargo Hotel. Steve did not come with us. Fran probably had two-three drinks at the club but again did not present as being intoxicated. We arrived at the Bargo Hotel at approximately 5.00 pm. My boyfriend, Craig, was working at the pub when we arrived. Shortly after we arrived at the pub Fran indicated she was going to borrow $50 off Kim Picton, pub manager. I did not observe her get the money off Kim, however, I assume she did. We remained at the hotel until approximately 8.30 pm … I would estimate Fran consumed six to eight drinks, a mixture of Bacardi and Cola and beer during the period we were at the hotel. As we left I offered to drive Fran’s car as I felt she had consumed too much alcohol to drive. She refused my offer and said she was OK to drive. As we only had to go five minutes up the road, and to be honest I have seen her drive in this condition before, I went with her in the vehicle. Upon arrival at my place Fran came in to make a phone call but my Mum was on the phone. Fran stayed about five to ten minutes and then left to drive home.”

20 The admissibility of the facts contained in the statement of Cheryl Parrington which was included in the report of Dr Dauncey was objected to by the defendants – the objection being taken after the report of Dr Dauncey was admitted into evidence.

21 The only material capable of supporting an inference that the plaintiff borrowed money a second time at the hotel is the statement of Cheryl Parrington referred to above. The truth of Cheryl’s statement was assumed by Dr Dauncey in the course of reaching her conclusions.

22 Ordinarily, if objection is taken, statements such as the one relied on by Dr Dauncey are not admitted as evidence of the truth of the facts contained within them.

23 Dr Dauncey’s report, which contained the statement of Cheryl Parrington, was tendered by Mr Inatey SC, who appeared for the defendants, during the plaintiff’s case and when Professor Starmer, called on behalf of the plaintiff, was giving evidence. Previously plaintiff’s senior counsel, Mr Hall QC, had indicated he would be calling Cheryl Parrington to give evidence. After Professor Starmer had completed his evidence and the report had been tendered plaintiff’s senior counsel indicated that he would not be calling Cheryl Parrington. Mr Hall QC informed the Court that she had told his instructing solicitor and his client that she would appear to give evidence but that she had not arrived at court. Mr Inatey SC told the court that he had subpoenaed Cheryl Parrington and invited Mr Hall to call her on his subpoena. Mr Hall declined to do so claiming that in the circumstances of the marriage break-up she would not be a witness he was expected to call.

24 Mr Inatey has submitted that it would be unfair to the defendants for me to have regard to Cheryl Parrington’s statement as evidence of the truth of the facts stated within it. However, the statement was tendered by Mr Inatey without qualification and that, as it would seem to me, concludes the matter. Accordingly I think the statement of Cheryl Parrington is admissible as being potentially probative of the facts contained within it.

25 However, as will be seen, her statement adds little by way of elucidation as to what happened on the evening of 1 November and is in conflict with other evidence. For example, she states that she and the plaintiff arrived at the hotel at 5.00 pm and remained there until approximately 8.30 pm. That statement is in conflict with other witnesses and more particularly in conflict with the evidence of Fay Parrington, which I accept, that the plaintiff arrived at her home sometime between 7.30 pm and 8.00 pm where she stated drinking a can of beer. Moreover it is highly unlikely the plaintiff consumed “six – eight” drinks in the second visit to the Bargo Hotel. The evidence of the pharmacologists is that if she had she would have been barely able to walk much less drive a car. Dr Dauncey has said that if this history were accurate she would have had a reading of .4 gms/100 mls at the time of the accident which she described as being “near lethal” and, bearing in mind her diminutive size, would have rendered her incapable of driving a car at all. Dr Starmer was of the opinion that had she been served six or eight drinks after 6.00 pm her high blood alcohol content would have rendered her “incoherent”. He though it “unlikely” that she would have had that much to drink during that period.

26 The evidence that the plaintiff borrowed money from hotel staff after 6.00 pm is to be found, if at all, in the statement of Cheryl Parrington. Neither the third or fourth named defendants gave evidence which, as I have previously said, gave credence to Mr Lund’s evidence concerning the first loan. With some misgiving I have assumed that the plaintiff borrowed $50 at about 6.00 pm from the manager. I would infer that between 6.00 pm and 7.30 pm the plaintiff drank alcohol but I do not know how much or how she obtained it.

27 In his report Professor Starmer referred to the plaintiff as being “grossly impaired”. In evidence he said he was referring to the impairment of her ability to drive a motor car. He made it clear he was not “describing her interaction with people in terms of talking, walking … “. As I have said I regard Fay Parrington as the most reliable witness concerning the plaintiff’s state of sobriety. I conclude, therefore, she was noticeably affected by alcohol between the period 6.00 pm and 7.30 pm. Notwithstanding the statement of Cheryl Parrington, I do not accept that the plaintiff consumed six to eight drinks during this period by reason of the opinions expressed by the pharmacologists. I do not know how much she drank or who provided her with alcoholic drinks. I am not prepared to conclude that when she left the hotel it “must have been obvious” that she was going to drive her own car particularly as she would be seen leaving the hotel in the company of another person.

28 In the course of address I raised with Mr Hall QC that the circumstance that although she said that when she drank to excess she frequently drove a motor vehicle that did not carry with it the inference that that was known to hotel employees. Mr Hall sought to re-open the case to call evidence that there were occasions in the past when she drove away in her car to the observation of either Kim or Col Picton. I did not allow him to reopen his case. The application was made after the evidence had closed and after Mr Inatey had addressed and Mr Inatey had informed me that at the close of all the evidence decisions had been made concerning what witnesses should remain or be sent away.

29 As I have said, I would conclude that she was noticeably affected by alcohol when she left the premises a little after 7.30 pm and probably more so than when she arrived at 6.00 pm.

30 Mr Hall has submitted that the employees of the hotel had a duty, breach of which was actionable, to ensure that the plaintiff was refused liquor after she had reached what has been described as the “legal limit”. In the present case the evidence is that by reason of the plaintiff’s size that would have meant that the hotel employees would have been in breach of duty to her by serving her more than one drink every hour.

31 He further submits that not only did the defendants have the obligation referred to above but they had a further obligation which extended to preventing her from driving home although just how that exercise could have been lawfully undertaken was not explored in depth.

32 The plaintiff herself has given evidence that she drove when she drank and that she knew that when she was doing that she was running the risk of injuring herself or others. The plaintiff left the hotel with her sister-in-law, Cheryl Parrington, who raised with her whether she should drive. Mr Samuels told her she would be “mad” if she were to drive. That evidence, together with the plaintiff’s statement that it was her habit to drive when drunk would seem to foreclose any argument that the staff at the hotel, even if they knew she was proposing to drive (and it must be remembered she left with her sister-in-law) would have had any success in persuading her not to drive that evening.

33 On behalf of the third and fourth defendants it is submitted that on any view of the evidence the plaintiff’s case must fail and even if that proposition could not be maintained there was no basis upon which it could succeed against the third and fourth-named defendants by reason of the Employees Liability Act 1991.

34 In Tweed Heads Rugby League Football Club v Cole (2002) 55 NSWLR 113 it was held that no duty of care is owed by the licensee of club premises to an adult person who is served alcohol by that licensee when that person is, or becomes, intoxicated and subsequently suffers injury contributed to by that intoxication.

35 Cole was concerned with a claim by a patron who was struck by a motor car after leaving a registered club in an advanced state of inebriation (the plaintiff had a blood alcohol reading .23 gms/100 mls). As the court made plain it was not dealing with a case where a third party is injured as a consequence of drunken driving by a person who had previously been served intoxicating drinks.

36 The court in Cole qualified the statement referred to above and said -

“197 There may, however, be circumstances which bring about a different result. For example, it may be that where a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises, the scope of the duty of care of the innkeeper will be extended to require reasonable steps to be taken for the protection of the intoxicated person.”

37 Mr Hall has submitted that in the present case there were circumstances which should lead to a different result from that reached by the Court of Appeal in Cole. It is that on two occasions the plaintiff was lent money by the hotel which, it was submitted, I should infer, was used to consume alcohol supplied by the defendants.

38 It appears to be assumed in the plaintiff’s case that the first loan of $50 was spent on liquor purchased from the Bargo Hotel. That, of course, is by no means clear bearing in mind that the plaintiff left the Bargo Hotel at 3.00 pm having spent $12 and thereafter spent sometime at the Bargo Bowling Club before returning the Bargo hotel at 6.00 pm. Bearing in mind that I am asked to infer the plaintiff borrowed more money when she returned at 6.00 pm I infer, more probably than not, that she spent money on alcoholic drinks at places other than the Bargo Hotel between 3.00 pm and 6.00 pm.

39 I see nothing in the decision of Cole which supports the proposition advanced by Mr Hall. In the course of a lengthy decision Ipp AJA reviewed all the authorities brought to the Court’s attention concerning the duty of care said to be owed by the licensee of a hotel to a patron who becomes intoxicated. In particular his Honour referred to the Canadian cases which provide support for the plaintiff’s claim in this case but declined to follow them (see Mayfield Investments Limited v Stewart (1995) 121 DLR (4th) 222, Jordan House Limited v Menow (1973) 38 DL (3d) 105). He referred to Johns v Cosgrove (1997) 27 MVR 110 where Derrington J, following Jordan House, where the following observation was made -

“It is not negligence merely to serve a person liquor to the point of intoxication; but it is so if because of the circumstances it is reasonably foreseeable that to do so would cause danger to the intoxicated party, such as, for example, where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is known or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this.”

Derrington J also referred to potential liability where it was known that the intoxicated person had to negotiate “dangerous traffic such as would be found where the hotel was situated between two major arterial roads, and his habit of going home unescorted was known”.

40 In Desmond v Cullen (2001) 34 MVR 186 and to the observations of Grove J, after referring to the two Canadian decisions referred to above and, as well, to Cosgrove said -

“I accept that the duty of care of an innkeeper extends to refraining from serving intoxicating liquor to the apparently inebriated and, if inebriation does occur, to take reasonable steps in the circumstances in respect to the safety of the inebriate. The fact that an occurrence takes place beyond the physical limits of the hotel and its curtilages does not necessarily take it outside of the range of duty nor does it inevitably demonstrate discharge of duty.”

41 In Cole Ipp AJA referred to the above statement of Grove J and to the circumstance that Spigelman CJ said that he was prepared to assume that the scope of duty extends to an obligation to refuse to continue to serve a client of the hotel when that client passes a certain state of inebriation, a state “perhaps not capable of definition but capable of assessment”. However, as Ipp AJA noted the Chief Justice thought the Canadian cases “needed to be treated with considerable caution”.

42 I do not think the defendants or any of them had a duty to protect the plaintiff from the consequences of her own inebriation but if they did I should record that I do not think that the plaintiff’s inebriation has been proved to have reached the stage where reasonable steps should have been taken for her “safety”.

43 Although it is probable that the plaintiff had passed the “legal limit” I am not satisfied she had reached that state of intoxication where she no longer had the use of her physical or intellectual faculties such that the staff at the hotel were guilty of a breach of the Liquor Act (s 125(3)) by supplying her with liquor, if indeed that is what they did.

44 It would seem to me, with respect to Mr Hall’s argument that the decision in Cole would foreclose his submission with respect to Desmond. Ipp AJA said -

“In the circumstances I do not think the statements of Grove J on the extent of an innkeepers duty of care constitute the ratio decidendi of Desmond v Cullen , and hence this Court is not bound by them.”

45 The case has not been put that the plaintiff was so inebriated as to be completely incapable of having any capacity to look after herself. She drove her sister-in-law home and then, after consuming more liquor, travelled another two kilometres before her accident.

46 It is to be noted that Heydon JA after agreeing with to the conclusions and reasons of Ipp JA added two matters of significance to the present case. The first was that the duty, if it existed, would lead to citizens being subject to an “intolerable burden” of potential liability by constraining “their freedom of action in a gross manner” and that the tort of negligence would “subvert many other principles of law and statutory provisions which strike a balance of rights and obligations, duties and freedoms” (See Sullivan v Moodie (2001) 193 ALR 404. His Honour also referred to the consequences of requiring publicans to guarantee the safety of the inebriated person. His Honour pointed out that the relevant legislation obliged publicans or licensees not to continue service and if necessary to “turn out” intoxicated persons but made no reference to keeping them in pending some guarantee for their safety. It is to be noted that the observations of Heydon JA as well as the reasons and conclusions of Ipp AJA were agreed with by Santow JA.

47 In my opinion the plaintiff’s case does not fall within the type of exception contemplated by Cole. That is particularly so when one has regard to the fact that in Cole some liquor was supplied free of charge by the Club and the remainder was paid for by the inebriated plaintiff.

48 Mr Hall QC has submitted that Cole’s case is wrong and should not be followed. I note his submission and, for reasons which I need not elaborate upon, reject it. Special leave to appeal has been granted by the High Court. I was referred to the transcript of argument on the application for special leave. As it would seem to me any observations made in the course that application (even if they would lead a reasonably minded person to a view as to the outcome of the case – which they do not in this case) is irrelevant. Cole remains the law until otherwise determined by the High Court, the Court of Appeal or the Parliament.

49 A significant reason for the conclusion arrived at in Cole was Reynolds v Katoomba All Services Club Pty Ltd (2001) 53 NSWLR 43. That case was concerned with a claim in tort by a club patron for damages being gambling losses resulting from intoxication by liquor supplied by the club. As was observed in Cole, Reynolds is authority for the proposition that the common law does not recognise a duty of care to protect persons from economic loss where the loss occurs following a deliberate and voluntary act on the part of the person to be protected.

50 As Ipp JA observed in Cole (para 175) -

“ … save perhaps in extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by them becoming intoxicated by alcohol following a deliberate and voluntary decision on their part to drink to excess.”

51 However the facts pan out in the present case they all lead to a conclusion that the plaintiff’s intoxication was the consequence of a “deliberate and voluntary decision” by her to drink to excess. The circumstance that she may not have been able to do that had the club not lent her money (and assuming she could not have borrowed money from others) does not, in my opinion, gainsay this conclusion. Moreover, I do not think there is any distinguishing feature in this case from those presented in Cole by reason of the fact that the plaintiff in this case is an inebriated driver who injured herself whereas in Cole she was an inebriated pedestrian who was injured by a driver. Bearing in mind reasons advanced by Ipp AJA (the coherence of tort law with criminal and contract law) it would seem to me that, bearing in mind the plaintiff at the time of her accident was committing a serious offence whereas the plaintiff in Cole was not, the distinguishing features referred to by Mr Hall would, if anything, strengthen the defendant’s case.

52 I do not understand the defendants to persist with the allegation that s 125 of the Liquor Act raises a statutory cause of action. But if that submission is made it has been set to rest by Cole.

53 Because I have concluded there was relevantly no duty of care breached by the defendants it is unnecessary for me to consider issues relating to causation and contributory negligence or to embark upon an assessment of damages.

54 There should be judgment for the defendants. The plaintiff to pay the defendants’ costs.

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Last Modified: 08/21/2003