In a landmark decision of the High Court, a hotel publican has escaped liability for the death of an intoxicated patron. The decision is an important statement of the duties owed by a licensed premises to its patrons.

By way of background, the proceedings were commenced by Sandra Scott (the deceased man's wife) and the Motor Accidents Insurance Board against the proprietor and licensee of the Tandara Motor Inn (the hotel). The plaintiffs alleged that the hotel had breached its duty to Mr Scott which resulted in his death.

The evidence was that Mr Scott went to the hotel around 5pm following work to have a few drinks. Not long after arriving, a rumour circulated that the police were in the area. Mr Scott agreed to lock his motorcycle in the hotel's storeroom to avoid being breathalysed. The keys to the motorcycle were given to the publican.

At around 7pm a friend offered Mr Scott a ride home but he refused, saying he would call his wife. A bit later, Mr Scott appeared to become upset following which the publican suggested it was time to go home. The publican asked for Mrs Scott's phone number, to which Mr Scott became verbally aggressive. He then demanded his keys and motorcycle. The publican asked three times if Mr Scott was right to drive to which he responded 'yes'. The evidence was that Mr Scott did not appear intoxicated. Around 8.30pm, on his way home, Mr Scott ran off the road and died. His blood alcohol reading was 0.253.

The trial judge held that the hotel did not owe any relevant duty to Mr Scott. The full bench of the Supreme Court of Tasmania disagreed, finding that the hotel publican had breached his duty by failing to stop Mr Scott riding his motorcycle.

The High Court reversed the full bench decision and found that there was no relevant duty of care owed by the hotel, and that if there was such a duty then breach of it had not been proved to have caused the death.

While a hotel has a duty to ensure that its premises are safe for patrons, that duty does not extend so far as to require the hotel to protect patrons from the consequences of alcohol once they have left the premises, except in exceptional cases. The Court found that this was not an exceptional case, as Mr Scott was not so intoxicated as to be completely incapable of any rational judgment or of looking after himself.

The agreement between Mr Scott and the hotel to store his motor cycle was voluntary and designed to avoid the police. Mr Scott did not request the publican to store the motorcycle to prevent self harm. The High Court did not agree with the Supreme Court's reasoning that the publican should not have given Mr Scott the keys to the motorcycle or that the publican should have attempted to stall Mr Scott while he called his wife. Mr Scott had a legal right to have possession of his keys and motorcycle, and to withhold access to them would be at odds with other areas of the law.

In regard to causation, the court found that even if the publican had telephoned Mrs Scott, there was no evidence that she would have received the call, or that if she had, that Mr Scott would have accepted the ride home. CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47

The decision is consistent with the modern trend towards adults bearing personal responsibility for actions they know carry risks, such as driving when intoxicated.