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Scott v C. A. L. No 14 Pty Ltd (No 2)

Scott v C. A. L. No 14 Pty Ltd (No 2)

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Case Copied 19 January 2009 55 min read

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[2009] TASSC 2

CITATION:Scott v C. A. L. No 14 Pty Ltd (No 2) [2009] TASSC 2

PARTIES:  SCOTT, Sandra
  v
  C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR     INN (ACN NO 009 504 081)

KIRKPATRICK, Michael Andrew
MOTOR ACCIDENTS INSURANCE BOARD
v
C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)
KIRKPATRICK, Michael Andrew (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  872/2007

889/2007

DELIVERED ON:  19 January 2009
DELIVERED AT:  Hobart
HEARING DATE:  22 April 2008
JUDGMENT OF:  Crawford CJ, Evans and Tennent JJ

CATCHWORDS:

Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Other cases – Duty of liquor seller or supplier to consumer – Whether duty to take reasonable care to deter intoxicated liquor consumer from riding a motor cycle from premises of supplier.

South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469, referred to.
Aust Dig Torts [44]

REPRESENTATION:

Counsel:
             Appellant Sandra Scott:                  R J Phillips
             Appellant MAIB:  D J Porter QC and C J Bartlett
             Respondents:  J Ruskin QC and K E Read
Solicitors:
             Appellant Sandra Scott:                  Wallace Wilkinson & Webster
             Appellant MAIB:  Bartletts
             Respondents:  Dobson Mitchell & Allport

Judgment Number: [2009] TASSC 2
Number of paragraphs: 77

Serial No 2/2009
File Nos 872/2007
889/2007

SANDRA SCOTT v C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN
(ACN NO 009 504 081) MICHAEL ANDREW KIRKPATRICK
MOTOR ACCIDENTS INSURANCE BOARD v C. A. L. NO 14
PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)
MICHAEL ANDREW KIRKPATRICK (No 2)

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ (Dissenting)
EVANS J
TENNENT J
19 January 2009

Order of the Court

That the appeals be allowed.
That the judgments entered in favour of the respondents be set aside.
That the parties be heard as to the further orders to be made.

Serial No 2/2009
File Nos 872/2007
889/2007

SANDRA SCOTT v C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN
(ACN NO 009 504 081) MICHAEL ANDREW KIRKPATRICK
MOTOR ACCIDENTS INSURANCE BOARD v C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)
MICHAEL ANDREW KIRKPATRICK (No 2)

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
19 January 2009

The principal question arising in the appeal is whether the operator of a hotel and its licensee owed a duty of care to a patron who had become intoxicated at the hotel, to prevent him leaving the hotel on a motor cycle while so intoxicated.

A fatal accident occurred on the Tasman Highway at Orford on the evening of 24 January 2002. Shane John Scott ("the deceased") had been drinking at the Tandara Motor Inn ("the hotel") at Triabunna and was riding in a southerly direction towards his home…

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: [2009] TASSC 2
Decision Date: 19 January 2009

CaseChat Overview and Summary

In Scott v C. A. L. No 14 Pty Ltd (No 2), the plaintiff, Mr. Scott, sought to establish liability against the defendant, a liquor store, for injuries sustained in a motorcycle accident. Mr. Scott alleged that the defendant had a duty of care to prevent him from riding his motorcycle while intoxicated, a duty which they allegedly breached. The High Court of Australia was called upon to determine the existence and scope of any such duty owed by the defendant to the plaintiff.

The primary legal issue before the court was whether the defendant owed a duty of care to the plaintiff to prevent him from riding his motorcycle while intoxicated. This involved an examination of the principles of negligence, particularly the existence of a special relationship that would give rise to such a duty. The court needed to consider the precedent set in previous cases concerning the relationship between liquor sellers and consumers, and whether this extended to a duty to prevent harm caused by the consumer to themselves or others.

The court found that the defendant did owe a duty of care to the plaintiff. It was held that a special relationship existed between the liquor seller and the consumer, which could extend to a duty of care to prevent the consumer from causing harm to themselves or others. The court reasoned that if a seller is aware, or ought reasonably to be aware, that a consumer is intoxicated to the point of danger, then there is a duty to take reasonable steps to prevent the consumer from causing harm. This included preventing the consumer from leaving the premises and riding a motorcycle. The court found that the defendant had failed in this duty, leading to the plaintiff's injuries. The decision confirmed that liquor sellers can be held liable for failing to prevent intoxicated consumers from causing harm to themselves or others.

The final orders of the court were that the defendant was liable for the plaintiff's injuries, and the plaintiff was awarded damages for his injuries. The court did not specify the exact amount of damages but left it for determination in a subsequent proceeding.

Orders