Scott v C.A.L. No.14 Pty Ltd - [2007] TASSC 94

[2007] TASSC 94

CITATION: Scott v C.A.L. No.14 Pty Ltd [2007] TASSC 94

PARTIES:  SCOTT, Sandra
  v
  C.A.L. NO.14 PTY LTD

KIRKPATRICK, Michael Andrew
MOTOR ACCIDENTS INSURANCE BOARD
v
C.A.L. NO.14 PTY LTD
KIRKPATRICK, Michael Andrew

TITLE OF COURT: SUPREME COURT OF TASMANIA

JURISDICTION: ORIGINAL
FILE NO/S: 196 & 617/2004

BDR 31/2004

DELIVERED ON:  23 November 2007
DELIVERED AT:  Hobart
HEARING DATE:  17, 18, 19, 23 October 2007
JUDGMENT OF:  Blow J

CATCHWORDS:

Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Other cases – Liquor seller or supplier – To liquor consumer – Whether general duty to prevent physical harm to liquor consumer – Whether duty to monitor and moderate level of liquor sold or supplied to consumer – Whether duty to ensure liquor consumer travelled safely from premises of supplier.

Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469, referred to.
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113, followed.
Jordan House Ltd v Menow (1973) 38 DLR (3d) 105, not followed.
Aust Dig Torts [44]

REPRESENTATION:

Counsel:
             Plaintiff Scott:  R J Phillips, A Worsley
             Plaintiff MAIB:  C J Bartlett
             Defendants:  K E Read
Solicitors:
             Plaintiff Scott:  Wallace Wilkinson & Webster
             Plaintiff MAIB:  Bartletts
             Defendants:  Dobson Mitchell & Allport

Judgment Number: [2007] TASSC 94
Number of paragraphs: 38

Serial No 94/2007
File Nos 196 & 617/2004
BDR 31/2004

SANDRA SCOTT v C.A.L. NO.14 PTY LTD and
MICHAEL ANDREW KIRKPATRICK

MOTOR ACCIDENTS INSURANCE BOARD v
C.A.L. NO.14 PTY LTD and MICHAEL ANDREW KIRKPATRICK

REASONS FOR DETERMINATIONS BLOW J

23 November 2007

These actions concern a fatal motorcycle accident that occurred on the Tasman Highway at Orford on the evening of 24 January 2002. The deceased had been drinking at a hotel at Triabunna named the Tandara Motor Inn ("the hotel"), and was riding to his home at Orford on his wife's motorcycle. As he approached the bridge over the Prosser River, he ran off the road on his right hand side into the gravel, travelled back towards the roadway, collided with the northern end of the bridge structure, and was killed. At the time of his death, he had a blood alcohol concentration of 0.253 grams of alcohol in 100 ml of blood.

His widow brought an action (no 196/2004) under the Fatal Accidents Act 1934 against the proprietor of the hotel, a company named C.A.L. No.14 Pty Ltd ("the hotel company"). Subsequently she brought a second action under that Act (no 617/2004) against the licensee of the hotel, Mr Kirkpatrick. Those actions have been consolidated. The Motor Accidents Insurance Board ("the MAIB") paid scheduled benefits in relation to the death of the deceased pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973. It has brought an action in the Burnie District Registry (no 31/2004) against the same two defendants to recover those scheduled benefits pursuant to s28C(2) of that Act. Loosely speaking, both plaintiffs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] TASSC 94
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the case of Scott v C.A.L. No.14 Pty Ltd, the plaintiff sought to hold the defendant, a liquor supplier, liable for negligence in failing to prevent the plaintiff from suffering physical harm as a result of intoxication. The dispute arose from an incident where the plaintiff consumed a large quantity of alcohol at the defendant's premises and subsequently caused an accident, leading to injuries. The plaintiff claimed that the defendant had a duty of care towards the plaintiff to prevent such harm, arguing that the defendant should have monitored and moderated the level of liquor sold or supplied to the plaintiff, as well as ensured that the plaintiff travelled safely from the defendant's premises. The case was heard by the Supreme Court of Queensland.

The legal issues before the court involved whether a liquor supplier owes a general duty of care to prevent physical harm to a liquor consumer, specifically in terms of monitoring and moderating the level of liquor sold or supplied, and ensuring that the consumer travels safely from the supplier's premises. The court had to determine if such a duty exists and, if so, whether the defendant had breached it in this case. The court also considered the precedent set by previous cases on the liability of liquor suppliers and the scope of their duty of care towards consumers.

The court found that there is no general duty of care owed by liquor suppliers to prevent physical harm to liquor consumers, based on the reasoning that the sale and supply of liquor is a lawful activity, and the supplier cannot be held responsible for the consumer's subsequent actions or inability to handle alcohol responsibly. The court emphasised the importance of individual responsibility and personal choice in consuming alcohol and rejected the notion that a supplier has a duty to monitor and moderate the level of liquor sold or supplied, or to ensure that the consumer travels safely from the premises. Consequently, the defendant was not found liable for negligence in this case.

The court ordered that the defendant was not liable for the plaintiff's injuries and dismissed the plaintiff's claim. The decision reinforces the principle that individual responsibility and personal choice play a significant role in alcohol consumption, and that liquor suppliers do not owe a general duty of care to prevent physical harm to consumers resulting from intoxication.

Orders