The High Court recently handed down two separate decisions reaffirming the Court’s reluctance to extend common law duty of care and re-enforcing the principle that individuals must bear personal responsibility for their own actions. Dispute Resolution Partner, Tom Griffith, examines the decisions.

The first case, Adeels Palace v Moubarak, involved a shooting at a Sydney function centre at a New Year Eve’s party. At about 2.30am on the night in question, a brawl erupted on the dance floor initially between two groups of women but quickly spreading and turning more violent.

One of the party goers left the venue during the brawl and later returned with a gun and shot two other party goers. The two shooting victims suffered serious injuries and sued the function centre alleging that by not providing accredited security guards, the function centre breached its duty of care.

The High Court found that the function centre did indeed owe the patrons a duty of care but that the extent of the duty owed was limited to the exercise of reasonable care to prevent injury to patrons from “violent, quarrelsome or disorderly” conduct of fellow patrons. The duty was consistent with the function centre’s obligations under the Liquor Act (NSW). The Court identified that one of the ways the function centre could discharge the duty by preventing entry to the premises of violent, quarrelsome or disorderly people and by alternatively removing such people from the premises.

The Court declined to re-consider the lower Courts’ finding that the function centre was in breach of its duty of care but instead dealt with the matter by concluding that the plaintiffs’ claim failed on an analysis of causation. The Court found that the plaintiffs’ argument that their injuries were caused by the function centre failing to take steps that might have made the injuries less likely to occur, ought be rejected.

The Court found that the presence of licensed security guards at the entrance of the function centre would not necessarily have deterred an armed gunman intent on revenge, and who was, on the evidence, not acting rationally. The plaintiffs’ claim failed.

The second case, C.A.L. No. 14 Pty Ltd v Motor Accidents Board, involved a Tasmanian man who died in a motor bike accident following a drinking session at a hotel. The man’s wife sued the hotel’s licensee (the publican) alleging that the publican owed the man a duty of care to prevent him from riding the motor bike home.

The case largely turned on its facts. The evidence revealed that earlier in the evening, because of a rumour that there was going to be a police breathalyser placed near the man’s house, and pursuant to a policy the hotel apparently had adopted to prevent drink-driving, the man had deposited the keys to the motorbike in the hotel’s petty cash tin and agreed to store the motor bike in the hotel’s store room. The evidence before the Court was that the hotel had a system in place whereby patrons would place their keys in the tin and the publican would call the patron’s wife or partner to pick them up later that night from the hotel. During his drinking session, the man’s drinking partner was driven home by his wife, who also offered two or three times to drive the man home. However, the offers were refused and the man remained at the bar. The man later became upset and agitated. The publican refused to serve the man further drinks and offered to call the man’s wife. The man refused the publican permission to call his wife and was abusive towards the publican in his refusal.

The man then demanded the return of his keys and the motor bike. The publican asked the man three times whether he was alright to ride. The man insisted he was not overly affected by alcohol and took the motor bike and keys and left. The evidence before the Court was that the man did not exhibit usual signs of drunkenness. On the way home, the man was involved in a fatal accident. His blood alcohol reading at the time of his death was later revealed to have been 0.253.

The man’s wife alleged that because the publican had failed to insist on calling her, and by allowing the man access to the keys and motor bike, the publican breached his duty of care to her husband. The High Court rejected the wife’s argument. The High Court concluded that, on the evidence, there was no duty of care owed, no breach and a lack of causation, all of which were fatal to the wife’s claim.

The Court found that the only way that the publican could have telephoned the wife was by delaying and deceiving the man (who had earlier refused the publican permission to call his wife and demanded the return of the motor bike, and had become abusive) and by somehow obtaining the wife’s telephone number. However, the Court noted that even if the publican had succeeded in obtaining the wife’s phone number, the evidence showed that the wife was not at home at the time that any call would have been made.

Further, the Court noted that even if the wife had been contacted and had duly attended the hotel to pick up her husband, there was no guarantee that the man would have meekly accepted the offer, given his aggressive and abusive behaviour during the course of the evening.

Finally, the Court noted that if it were to impose on the publican a duty to deny the man access to his keys (to which the man was legally entitled) then the publican may be exposed to a risk of physical harm.

The High Court took the opportunity to repeat the current common law position on liquor licensee’s duties:

“persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.”

The latter decision has been heralded as a victory for common sense by publicans, but has been decried by advocates of safer drinking in the community.