an open letter to pm tony blair, page-53

re: hookes trial - don't be too hasty in judgement What are the responsibilities of a licensee?

If you have a liquor licence, your responsibilities are fairly well outlined in your licence and in the Liquor Control Reform Act 1998. One of the primary objectives of this law is "to contribute to minimising harm arising from the misuse and abuse of alcohol." This is achieved by providing adequate controls over supply and consumption.

As well as the obvious restrictions in relation to supplying alcohol to a person under 18 years of age (which can attract a fine of up to $2000), Section 108 states that a licencee must not supply liquor to an intoxicated person or permit a drunk or disorderly person to be on the licenced premises. Failing to do this can attract a maximum penalty of $2000 or an on the spot fine of $200.

Removing a drunken person from licenced premises can of course be a difficult task, as people under the influence can be argumentative and aggressive. For this reason, the Liquor Licensing Victoria runs responsible server training programs for liquor service staff.

But what about the licencee’s responsibilities once the patron has left?

This area is decidedly more grey as it falls into the area of civil liability. However, a landmark case (Johns V Cosgrove & Ors) decided in Queensland in 1997 has certainly opened the gates to the possibility that licencees, and indeed servers, may be responsible for their patrons even after they have left the premises.

The incident that prompted the action occurred on 24 April 1990. The plaintiff was at the Chevron Hotel and did not leave until closing, by which time he was severely intoxicated. Mr Johns was a regular customer and at least some staff knew he would have to travel over a busy street to catch a bus to get home.

While waiting for the bus, Mr Johns lost his grip on the bus-stop sign supporting him and staggered into the path of an oncoming car. The collision left him with serious long-term damage from head injuries, a fractured left leg and an injury to his right knee.

The court found that the driver of the vehicle, Mr Johns and the Chevron Hotel were all at least partially responsible for Mr Johns’ accident. He awarded Johns damages exceeding $500,000, reducing this by 45 per cent on the basis of contributory negligence while holding the hotel owner 25 per cent responsible and the driver 30 per cent responsible for the damage.

In the judgement, the court found that "…the plaintiff was served up to this state of gross intoxication when he was a danger to himself for it was known to the bar staff that he would then go home by a route that would take him into close proximity to a busy highway. Again, the primary responsibility was the plaintiff’s, but knowing that an intoxicated person would place himself in a position of danger on leaving the hotel, a publican cannot continue to supply him with the means of greater intoxication without regard to the danger to which he is thereby contributing."

The Judge noted that a hotelier would not be held liable in negligence merely because a patron is served alcohol to the point of intoxication. However, if a hotelier is aware of a circumstance in which it is reasonably foreseeable that the continued service of alcohol will place the intoxicated person in a dangerous situation, the hotelier will be guilty of negligence if no action is taken to ensure that dangerous circumstances are avoided.

This judgement was an extension of an earlier judgement (Hay v Sheargold) in which the plaintiff became intoxicated in the bar of the hotel where he was staying, then while attempting to climb the unilluminated stairs to his room, fell and was injured. Although the presiding judge would have found for the plaintiff on the basis of a contractual liability in any event, Dunford J found that the manager of the bar knew, or ought to have known, that the plaintiff was intoxicated. He therefore owed the plaintiff a duty of care to ensure that he was safely conducted to his room. While reducing the damages for contributory negligence, his Honour said "licencees and proprietors of hotels must expect from time to time there will be intoxicated people on the premises, and take reasonable care to prevent injury to persons intoxicated."

So what does this actually mean?

Essentially, a hotelier or licencee may be deemed liable in the following circumstances: alcohol is served to a patron who is intoxicated; it is reasonably foreseeable that the continued service of alcohol may lead to the patron putting themselves into a risky situation; the hotelier or licencee fails to safeguard against the risk arising and consequently; the patron or a third party is injured or damage results.

What about when you are serving alcohol socially?

This area of law is yet to be explored in Australia. However, there does not appear to be any reason why the decision in Johns v Cosgrove will not be extended to cover social hosts. Whether there is a case or not will naturally vary according to the situation. However, if the host sets up a bar and serves alcohol to intoxicated guests in the knowledge that a dangerous situation may develop, a potential liability may arise.

How can you avoid being subject to litigation?

The easiest way to avoid potential litigation is to refuse to serve intoxicated patrons. If you come across someone who is intoxicated, take care to ensure the individual has a safe passage home. Providing trained bar staff at events as well as developing house policies regarding the service of alcohol is also useful as it will form a defence in the case of civil liability. Current insurance policies should also be checked to assess your liability should a situation arise.

While the area of law is still uncertain, particularly relating to social serving, it is an area with great potential for liability and servers should be aware so that their case does not become the one that clarifies it.