High Court decision sees blame rest with alcohol drinkers not sellers

Posted by Editorial on 12th November 2009

The High Court of Australia has overturned a ruling by the Full Court of the Tasmanian Supreme Court that found a publican was responsible for the death of an intoxicated driver. The driver had given the publican the keys to his motorcycle and told him not to return them if he got drunk. The High Court of Australia failed to find that the publican was responsible for the actions of the drinker.

The case extends on a trend of the current High Court in favour of personal responsibility, but a legal expert has disputed assertions from health experts that the ruling will result in pubs reducing security and protection over their clientele.

“This should not be the case due to the extensive existing legal requirements under liquor licence conditions,” Joe Lederman, Managing Principal of leading food law firm FoodLegal, advised. “All the Court has said is that individual people (publicans) should not be responsible for the actions of others (clients) just because they are engaged in the service of alcohol.”

“The Court has said that if publicans are to have that legal responsibility, it is a decision that must be taken by Parliament, not by the Courts imposing a duty of care.”

In January, the Tasmanian Supreme Court ruled that the publican at the Tandara Motor Inn, on the state’s east coast, had breached his duty of care by returning the keys of a motorbike to a patron who had been drinking at the bar. However, the High Court judges disagreed with that finding, maintaining that the duty of care largely rested with the consumer rather than the seller.

“Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility,” they noted. “It is a matter more fairly to be placed on the drinker than the seller of drink.”

“To encourage interference by publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislatures, not courts, and it is a step which legislatures have taken only after mature consideration.”

Joe Lederman added that the ruling was one of commonsense as a finding against the publican would have had wide-reaching implications for the servers of alcohol.

“Publicans are already held responsible not to serve alcohol to intoxicated people under liquor licensing laws. In this instance, the publican complied with his legal responsibilities. If the High Court had found the publican responsible, the decision could have had much more far-reaching consequences than simply the publican-drinker relationship,” he concluded.