What about this one?

[Big Dave]

Widow sues pub over DUI death

Article from:"http://www.news.com.au/dailytelegraph
By Sally Glaetzer
January 19, 2009 01:45pm

A WOMAN has successfully sued a pub over the death of her husband in a drink-driving crash in a landmark case that could have repercussions around Australia.

Shane Scott was killed when he crashed his motorcycle while riding home from the Tandara Motor Inn at Triabunna, on Tasmania's east coast, on January 24 2002, The Hobart Mercury reports (http://www.themercury.com.au/article/2009/01/19/50511_tasmania-news.html).

At the time of his death Mr Scott had a blood alcohol reading more than five times the legal limit.

In Hobart this morning the full court of the Supreme Court found the hotel and its then-licensee Michael Andrew Kirkpatrick owed a duty of care to Mr Scott.

In a majority decision, the court found the duty of care was breached and that Mr Scott's widow Sandra should be awarded damages for her husband's death.

That ruling -- thought to be a first in Australia -- overturned the Supreme Court's original dismissal of Mrs Scott's lawsuit in late 2007.

The court heard Mr Scott was drinking at the Tandara Motor Inn after work.

There was talk of police being in the area so he gave his motorbike keys to Mr Kirkpatrick.

But later, having consuming up to eight cans of Jack Daniels and cola, Mr Scott retrieved the keys and rode off.

Full story in The Hobart Mercury (http://www.themercury.com.au/article/2009/01/19/50511_tasmania-news.html)

[tri boy]

What about "duty of care" towards ones self?
Frecking lawyers will have a field day if cases like that are upheld. The drunken squid was at fault, not the publican. MHO

[slofox]

Personal responsibility? Wha...?

[Boob Johnson]

Obviously the patron HAS to assume ultimate responsibility BUT...If I were the publican I wouldn't have given the keys back, nor should I. Some degree of responsibility needs to be upheld here on his part. How that translates into a workable law I haven't (& probably won't) given it enough thought.

Ask yourself the question...

If it were your family would you be pissed off that the (sober) publican caved & gave his keys back? <_<

[rainman]

Of course what the article doesn't say is how he retrieved the keys, and whether the publican was involved in that process. For all we know he could have leaned over the counter and retrieved them without the publican even knowing.

Also, is it legal for the publican to withhold his keys if he had insisted that they be returned? I mean, they're his property... I appreciate it would be the moral thing to do.

If it was me though I'd have gone after the publican for serving him when he was pissed. 7 JD's and Coke = too pissed to ride, don't care who you are, so at the least he shouldn't have given him the 8th one.



And: JDs and Coke, ewwww. Waste of good JDs.

[toycollector10]

It's 2009 and the publican had a duty of care to the guy he was selling grog to. Not to hand the keys over but prior to that observe that the guy was driving/or on a bike and one pint or beer would have been plenty. Both at fault, one paid the ultimate price. Life/death's tough eh?

[tri boy]

The bloke went to the pub on his bike, (assume to get pissed).
He got pissed, got his keys back, and wasted himself on the road.
The publican could of had 100+ people to deal with, he's not a nanny for every dropkick that can't get their shit together.
Soceity is full of wankers who will not deal with their own shit sandwich.
And the frecking laws of the lands are pandering to them.

He could of got dropped to the pub, got a taxi there or after drinking, but no, he got wasted, rode, and then wasted for good.
Hows that the publican's fault?

[McJim]

Mmmm - contributary negligence?

[Boob Johnson]

The publican could of had 100+ people to deal with, he's not a nanny for every dropkick that can't get their shit together.
Um??? Actually he is, by law. He has a duty of care...by law. In this case it is being tested just how far that goes.

[98tls]

Can see both sides i guess,personally i think if your old enough to drink then you have given up the right to have a babysitter,what part of dont drink and drive didnt he understand?

[Cookie Monster]

What a damm joke. I own a pub and man we try to stop as many as we can but people still want to drive home. Personal responsability has to come into it.:mad:

[bull]

Looks like the pub may have to countersue the women for not dropping off her husband or for not picking him up.

Case is bullshit - feel sorry for the pub.

[98tls]

What a damm joke. I own a pub and man we try to stop as many as we can but people still want to drive home. Personal responsability has to come into it.:mad: Xactly,maybe add a $1 a jug for babysitting.

[Anarkist]

5 times the legal limit?

No wonder he binned it.. That woulda been a sketchy ride home. :confused:

[MisterD]

Five times Aussie limit = about 3 times our limit...but yeah.

[MSTRS]

Is there not a legal condition of a publican's licence that s/he not serve intoxicated persons? At 5 (or 3)x the limit, the level of affectedness should be apparent to a professional server.
So the publican does bear some responsibility.

[ital916]

fark me..if bars stopped serving intoxicated patrons they would go out of business :laugh:, i reckon its the riders fault, having worked in hospitality it can get freaking busy and if he managed to weasel his keys back and take of under the radar why should the pub be held responisble. If on the other hand if he was given the keys and then shouted well slurred to the world he would drive home with all staff watching. Then maybe was duty of care breached.

so, if he was drunk but not five time says only just drunk and then crashed would there be a massive hooplah? I for one can drink a shitload and still look quite sober.

[Zrex]

Absolutely totally ridiculous!!

Anybody who does not want to take responsibility for their own safety should be put up against a wall and shot.

along with all them smokers who inhale smoke all day for 20 years and then try to blame cigarette companies for their f#$ked lungs.

and those fat f%$ckers who sit on their fat asses all day stuffing their faces and then try to blame manufacturers for producing unhealthy food.

Kill em all so the rest of us can live in freedom.

[HenryDorsetCase]

The bloke went to the pub on his bike, (assume to get pissed).
He got pissed, got his keys back, and wasted himself on the road.
The publican could of had 100+ people to deal with, he's not a nanny for every dropkick that can't get their shit together.
Soceity is full of wankers who will not deal with their own shit sandwich.
And the frecking laws of the lands are pandering to them.

He could of got dropped to the pub, got a taxi there or after drinking, but no, he got wasted, rode, and then wasted for good.
Hows that the publican's fault?

Oooooh oooooh I know this one.

It is an extension of principle of the well known case of Donoghue v Stephenson. In that case, a snail was found at the bottom of a bottle of ginger beer. After consuming said ginger beer, the punter got sick. Question: in the absence of a contractual relationship (she having bought the ginger beer from a third party) was there any principle which sheeted home some form of liability to the MANUFACTURER of the ginger beer. Held: Yes there was: the manufacturer owed a "Duty of care" to the eventual consumers of their ginger beers to not allow snails in them, which might make a person ill. Damages to the ginger beer drinker. It was quite a novel principle at the time (1840's?)

That doctrine of duty of care/negligence/tort law generally has been hugely expanded over the intervening period. This case in point (is a publican liable to a patron) seems to be an extension of that. A couple of points to note: this is civil liability, not criminal, and so the burden of proof is "balance of probabilities": in this civil/equity jurisdiction.

I am pretty sure I am correct in saying (but I am notoriously lazy, and I dont have any of my staff on hand to say "go look this shit up for me") that in NZ the publican would be criminally liable as well: it is an offence to supply likker to an intoxicated person.

Presumably the real target here is the brewery, or the pubs insurers.

I dont have a problem with the verdict, or the process to be honest.

Sure the quy was a munter who got likkered up and killed himself, just lucky he didnt take anyone else with him. Publican was interested in the guy enough to take his money, right? Should have organised a taxi or something.

[HenryDorsetCase]

checked out the Sale of Liquor Act 1989 and yes, it is an offence to supply liquor to intoxicated persons.

check out ss166 -172 if you are interested: edifying.

www.legislation.govt.nz > Sale of Liqor Act > s166ff




Sale or supply of liquor to intoxicated person(1) Every person commits an offence and is liable to the penalty set out in subsection (4) who, being the licensee or a manager of any licensed premises, sells or supplies liquor to any other person who is already intoxicated.

(2) Every person commits an offence and is liable to the penalty set out in subsection (4) who, not being the licensee or a manager of any licensed premises, sells or supplies liquor to any other person who is already intoxicated.

(3) Subsection (2) of this section applies irrespective of any liability that may attach to the licensee or any manager in respect of the same offence.

(4) The penalty is,—

(a) In the case of a licensee,—

(i) A fine not exceeding $10,000; or

(ii) The suspension of the licensee's licence for a period not exceeding 7 days; or

(iii) Both:

(b) In the case of a manager, a fine not exceeding $10,000:

(c) In the case of a person (not being a licensee or manager), a fine not exceeding $2,000.





and just thinking about the damages aspect: the brewery will argue that the award (since liability is now established) should be reduced because of the man's contributory negligence.

I can try and see if I can get the judgment online tomorrow if anyone is interested in reading it?

[tri boy]

Define "intoxicated".
The obvious ones are outside any pub/club at 1am on a Sunday morning.
They are the easy ones.
But what if 2-3beers sets off a neurological fart, that manfests into a violent/dangerous person? (some one boozing while off medication).
Is the publican less, or more responsible in this case, if a murder/violence/car accident occurs?
A very murky, and difficult task to work through.
Leave personal responsibilty at the fore front I say.:yes:

[HenryDorsetCase]

Define "intoxicated".
The obvious ones are outside any pub/club at 1am on a Sunday morning.
They are the easy ones.
But what if 2-3beers sets off a neurological fart, that manfests into a violent/dangerous person? (some one boozing while off medication).
Is the publican less, or more responsible in this case, if a murder/violence/car accident occurs?
A very murky, and difficult task to work through.
Leave personal responsibilty at the fore front I say.:yes:

I dont think we need to define (for civil purposes) intoxication (and there is already a legal definition in the criminal jurisdiction. We can infer intoxication quite readily here from the facts: drank a bunch of awful demon drink, went out on motorbike, killed self.

One of the foundations of this area of law (and it is fascinating) is the question of the reasonable man, having the knowledge: What would the (to (mis)quote Lord Denning) man on the Clapham Omnibus do? So your example of the guy with the medical condition: maybe a reasonable publican wouldnt be liable in those circumstances. But a reasonable publican, knowing the patron had consumed 8 JD's would reasonably infer that the patron may be impaired driving home, and thus may cause injury to themselves. That meets the proximity requirement, and sheets home liability.

And your point about personal responsibility is dealt with by contributory negligence reducing the award.

I wondered whether the damage to the widow might found some sort of claim by her (presumably it was the estate of the dead guy suing).

By the way, I was reciting the faxts of Donoghue v Stephenson from memory. The real story is on wikipedia (http://en.wikipedia.org/wiki/Donoghue_v_Stevenson). The key is that Mrs Donoghue's friend purchased teh ginger beer for her. (i.e. we are twice removed from the manufacturer) I did get the principle right though (something my lecturers would no doubt be amazed by).

[tri boy]

Will be interesting to see how the legal soceity in Aus react.
Thanks for your professional feed back.:msn-wink:

[Genestho]

In my years as a duty manager, we would sit a host reponsibility exam to qualify for our license, one of the points I recall clearly was we'd be fined upto10,000 if we served "intoxicated persons" under the sale of liquor act.
Quite often there'd be screeching drunk women whinging to anyone that would listen - that wern't being served anymore!

Theres been undercover (target?) filming of bar people serving drunks.

Its still happening, and Im not sure if these acts are being enforced.

I dont know how I feel about this one, although I do like it somewhat...

Im all for that old personal responsibility..but....Playing devils advocate here...when "your" eba is three times over the limit, what mental fit state are you in to drive (or do anything at all)? The nuerological research on this is damning (on recidivism studies out of the states).

If there are bar staff/people around to prevent carnage, should they be pulled up as well if they dont follow host responsibilties acts?

In the National Alcohol Plan, the ultimate aim is to reduce alcohol related harm, there are discussions on more emphasis (amongst a helluva lot more other initiatives) of work place and bar, host reponsibilities. (which yes will spread the blame around) but in some ways thats got to be a good thing?

The carnage is too high for us to continue as we have in the past, when you see the contributing factors the fatalities, the injuries, waste of emergency staffs and hospital time (was it 70% or there abouts of emergency room staff are patching up drunks?), and the far reaching consequences, its bloody concerning.

Great post HDC, +1