On 3 March and 22 July 2015, HopgoodGanim Lawyers published alerts discussing the outcome of cases involving patrons and employees injured at licensed venues whose claims for negligence against the proprietors of those premises were dismissed.
In a further development for operators of hotels and licences clubs, in Schuller v SJ Webb Nominees Pty Ltd (2015) SASCFC (12 November 2015), the South Australian Supreme Court recently upheld a decision of the District Court which found in favour of a hotel sued by a patron who fell off a chair at its premises while intoxicated.
Here, Partner Robert Tidbury and Law Clerk Christopher Pham discuss the decision further.
The plaintiff visited Port Broughton Sunnyside Motel which was operated by the respondents, and purchased three schooners of beer during the first hour or two. She had also consumed OxyContin, a strong painkiller for her back pain which had the potential to amplify the effect of alcohol.
At one point during the night, the plaintiff got up on a chair and started dancing, but was immediately reprimanded by the bar manager. She again attempted to dance on a chair 35-40 minutes later and was given a ‘first and final warning’ from the bar manager who warned that she would be excluded from the hotel if her behaviour continued. Having noticed that the plaintiff was highly intoxicated, the hotel’s bar manager instructed the bar staff to stop serving drinks to her.
Later in the evening, the plaintiff once again got up on a chair to dance and was subsequently asked to leave the premises. However, she ignored the barman, continued to dance and injured herself moments later when she fell off the chair.
The plaintiff instituted proceedings in the South Australian District Court which were subsequently dismissed. The trial judge found the respondent publican did not owe the plaintiff a duty of care to protect her from the consequences of her excessive intake of alcohol, and if a duty existed, the respondent publican was not in breach of it. It was further held that the respondent had established the defence of voluntary assumption of risk.
The appellate court dismissed the appeal, upholding the decision of the trial judge at first instance. In arriving at its decision, the Full Court of the Supreme Court considered and applied the High Court decision of C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 (CAL) which states that outside of exceptional cases, proprietors of licensed premises do not owe a general duty of care to customers to monitor or minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.
Furthermore, the court determined that the plaintiff’s conduct in repeatedly dancing on a chair despite warnings from bar staff not to do so was not evidence of an exceptional case as the plaintiff was so not intoxicated as to be completely incapable of self control or looking after herself.
The appellate court also upheld the trial judge’s finding that even if a duty was owed to the plaintiff by the respondent, it had not breached this duty. The court agreed with the trial judge’s reasoning that the premises were safe and sound as the tables, floor and chairs were in good condition. The room was also set up for dancing in a safe way with tables that were cleared to the side and plainly visible. Further, the hotel and bar staff took reasonable, adequate and safe measures in giving the plaintiff two warnings and cutting off alcohol service to the plaintiff. In particular, the court endorsed the trial judge’s reasoning that the location of the plaintiff’s fall resembled a typical scene found at any country pub.
The appellate court also determined that the plaintiff was consciously alerted to the possibility of suffering a fall from the chair through the repeated warnings of the bar staff. By ignoring these warnings and continuing to dance on the chair whilst inebriated by the alcohol, the respondent publican was able to establish the defence of voluntary assumption of risk.
Take Away Points
Proprietors of licensed premises generally owe no duty of care to monitor or minimise the service of alcohol to customers or to protect them from the consequences caused by their intoxicated behaviour.
An exception to this principle is where the evidence demonstrates that the patron was so completely incapable of any rational judgement or taking care of himself or herself due to excess intake of alcohol. In those circumstances a duty of care may be imposed on the operator of the licensed premises.
Proprietors of licensed venues, like all occupiers, do owe a general duty to invitees and patrons to take reasonable care to avoid foreseeable risk of injury. A different outcome may have occurred in this case if the evidence revealed the hotel had not taken reasonable measures to provide safe premises – for example, if the furniture or floor were in poor condition, or if the bar staff had not issued prior diligent warnings to the patron.
In addition, proprietors of licensed premises must comply with statutory requirements in relation to the service of alcohol to patrons and maintain their premises in a safe manner.