CAL No 14 Ltd v Motor Accidents Insurance Board; CAL No 14 Ltd v Scott

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Gummow,Heydon,Crennan JJ.,Hayne J.
• Judgment Date: 10 November 2009
• Neutral Citation: 2009-1110 HCA A,[2009] HCA 47
• Court: High Court
• Docket Number: H7/2009 & H8/2009
• Date: 10 November 2009

C.A.L. No 14 Pty Ltd T/AS Tandara Motor Inn & Anor

Appellants

and

Motor Accidents Insurance Board

Respondent

C.A.L. No 14 Pty Ltd T/AS Tandara Motor Inn & Anor

Appellants

and

Sandra Scott

Respondent

[2009] HCA 47

French CJ, Gummow, Hayne, Heydon and Crennan JJ

H7/2009 & H8/2009

HIGH COURT OF AUSTRALIA

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board

C.A.L. No 14 Pty Ltd v Scott

Torts — Negligence — Duty of care — Operator of hotel and liquor licensee — Intoxicated patron died in road accident after leaving hotel on motorcycle — Where patron and licensee agreed motorcycle and its keys should be held by licensee and patron's wife called when patron ready to leave — Patron refused licensee's offer to call wife to collect patron as arranged and requested keys — Whether licensee had duty to take reasonable care to prevent intoxicated patron from riding motorcycle from hotel — Whether an exceptional case.

Torts — Negligence — Breach — Whether alleged duty required licensee to call wife — Whether alleged duty discharged by offer to call wife.

Torts — Negligence — Causation — Whether calling wife would have prevented death — Whether on balance of probabilities wife would have received and responded to call in time.

Words and phrases — ‘balance of probabilities’, ‘an exceptional case’.

Criminal Code (Tas), ss 43, 45.

Liquor and Accommodation Act 1990 (Tas), ss 62, 78, 79, 79A, 80.

Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 4, 5(1).

Traffic Act 1925 (Tas), s 41A.

Representation:

J Ruskin QC with K E Read and S A O'Meara for the appellants (instructed by Richard Mole & Associates)

B W Walker SC with C J Barlett for the respondent in H7/2009 (instructed by Bartletts)

S P Estcourt QC with A Darcey for the respondent in H8/2009 (instructed by Wallace Wilkinson & Webster)

ORDER

• 1. Appeal allowed.

• 2. Orders of the Full Court of the Supreme Court of Tasmania set aside, and in lieu thereof order that the appeal to that Court be dismissed.

• 3. The respondent is to pay the appellants' costs of the hearing in the Full Court of the Supreme Court of Tasmania and in this Court.

1 French CJ. I agree that the appeals should be allowed and that the orders proposed by Gummow, Heydon and Crennan JJ should be made. I do so for the reason, explained by their Honours 1, that the appellants did not owe to the deceased, in the circumstances of this case, a relevant duty of care. I agree also with their Honours' conclusions on causation 2 and breach of duty 3 . I express no opinion on more general questions about the duty of care owed by publicans to their customers or to persons other than their customers. The resolution of these questions in future will be likely to require consideration of the liquor licensing laws and the civil liability statutes of the relevant State or Territory. The latter statutes now contain provisions dealing with the effect of intoxication upon one or more of duty and standard of care, breach and contributory negligence 4 . As pointed out in the joint judgment 5, the Civil Liability Act 2002 (Tas) was only enacted on 19 December 2002 and is irrelevant to these proceedings.

2 Gummow, Heydon and Crennan JJ. At or shortly after 8.30pm on 24 January 2002, Shane Scott left the Tandara Motor Inn, Triabunna, Tasmania (‘the Hotel’). His home was about seven kilometres away. He planned to travel there on his wife's motorcycle. He ran off the road about 700 metres from home and suffered fatal injuries. It was common ground that the accident resulted from his ingestion of alcohol. His blood alcohol reading was 0.253g per 100ml of blood. He had drunk seven or eight cans of Jack Daniels and cola at the Hotel from 5.15pm onwards.

Procedural history

3 The claims. Mr Scott's wife, Sandra Scott, instituted proceedings in the Supreme Court of Tasmania against CAL No 14 Pty Ltd, the proprietor of the Hotel (‘the Proprietor’). She instituted additional proceedings against Michael Andrew Kirkpatrick, who was the licensee of the Hotel (‘the Licensee’). The proceedings were consolidated. The Motor Accidents Insurance Board of Tasmania (‘the Board’) commenced proceedings to recover sums it had paid to or on behalf of Mrs Scott. Those proceedings, like Mrs Scott's proceedings, alleged that the Proprietor and the Licensee owed, and were in breach of, duties of care to Mr Scott.

4 The trial judge. In the Supreme Court of Tasmania, Blow J held that the Proprietor and the Licensee did not owe any relevant duty of care to Mr Scott; but that if they did, they were in breach of it, and that their breaches caused the injuries which brought about his death 6.

5 The Full Court. Mrs Scott and the Board each appealed to the Full Court of the Supreme Court of Tasmania. The appeals were allowed by Evans and Tennent JJ (Crawford CJ dissenting). The majority differed from the trial judge and the Chief Justice in concluding that the Proprietor and the Licensee did each owe a duty of care, but agreed with the trial judge that there was a breach of duty causing damage 7.

6 The appeal to this Court. The Proprietor and the Licensee, by special leave, have appealed to this Court against the allowing by the Full Court of Mrs Scott's appeal and the Board's appeal. Each appeal should be allowed for the following reasons.

The facts

7 Mr Scott worked for the Glamorgan-Spring Bay Council as a backhoe operator. The Council's depot was adjacent to the Hotel. At lunchtime on 24 January 2002, Mr Scott agreed to meet a workmate, Mr Rex Kube, for a drink at the Hotel after work. After drinking a stubby of beer at the Council's depot at about 5.00pm, Mr Scott arrived at the public bar of the Hotel at 5.15pm, where he met Mr Kube. Mr Scott had been a regular purchaser of liquor from the Hotel's bottle shop for consumption at home, but was not a regular patron of the public bar. Mr Scott began to drink cans of Jack Daniels and cola, while Mr Kube drank eight ounce glasses of full strength beer. At least initially, they made purchases from the Licensee's wife. She ceased work between 5.30 and 6.00pm. The Licensee then took over. He was responsible for all areas of the Hotel: the public bar, the bottle shop, the area in which ‘Keno’ gambling could take place, and the lounge.

8 The ‘arrangement’. Between 6.00 and 6.30pm, a rumour circulated that there was a police breathalyser or speed camera near Orford, where Mr Scott lived. Mr Kube suggested to Mr Scott that he place his wife's motorcycle in a lockable room known as the storeroom or plant room. Mr Scott agreed. Mr Kube asked the Licensee whether the motorcycle could be secured in that way. It was the Licensee's understanding that Mrs Scott would pick up her husband later that night and that he would collect the motorcycle the next day. Mr Scott and Mr Kube, aided by the Licensee, put the motorcycle in the storeroom a little later. The Licensee then placed the keys to the motorcycle in the petty cash tin, which was the normal receptacle for keys handed over by customers.

9 At about 7.00pm Mrs Helen Kube arrived. She offered Mr Scott a lift home two or three times, but he refused, and said on the last occasion that he would call his wife to come and get him. Mrs Kube did not detect signs of intoxication in Mr Scott. She said that he ‘seemed okay’ and ‘was talking okay’; that he did not seem to be uncoordinated, clumsy, fumbling, unsteady, slurred in speech, or agitated; and that he did not lack focus. She did not support suggestions that he was smelling of alcohol and had glazed eyes. Mr and Mrs Kube left between 7.45 and 8.15pm.

10 Mr Scott refuses the Licensee permission to ring Mrs Scott. After the Kubes had left, a significant incident took place. Mrs Patricia Thirlway and her 10 year old daughter entered the public bar in order to watch tennis on television. Mrs Thirlway had a conversation with Mr Scott about her brother, who also worked for the Council. Mr Scott appeared ‘friendly and normal’. Mr Scott then left the public bar. He returned 10 or 15 minutes later and placed his head on his hands on the bar. The Licensee came into the bar, told Mr Scott he had had enough, said it was time to go home, and asked for Mrs Scott's telephone number so that she could be contacted to come and get him. According to Mrs Thirlway, Mr Scott said: ‘If I want my wife I'll fucken ring her myself’. According to the Licensee, after he had asked Mr Scott whether he wanted him to ring Mrs Scott, Mr Scott became agitated and said: ‘If I want you to ring my fuckin' wife, I'd fuckin' ask ya.’ The Licensee responded: ‘Whoo hang on, whoo, whoo, whoo, this is not, you know, don't go crook at me, this is not the arrangement that was made.’ Mrs Thirlway told Mr Scott that the Licensee was only trying to do the right thing. Mr Scott then directed to Mrs Thirlway ‘a bit of a rant about the local council’ — ‘a bit of a hate session about the local council and the local community’. Mrs Thirlway said he had changed ‘very quickly’, he ‘fired up all of a sudden’, he became agitated, angry, stroppy and sufficiently strange and unpleasant for her not to want to talk to him again. Mrs Thirlway did not want to be involved in a confrontation and tried to ignore Mr Scott. Mr Scott put his head back on the bar and went quiet. Mrs Thirlway and her daughter then left. Like Mrs Kube 8, Mrs Thirlway did not notice any signs of intoxication in Mr Scott, either before he left the public bar or after he returned.

11 Mr Scott's departure. Mr Scott went outside for a couple of minutes and upon his return asked the Licensee for the motorcycle and its keys. The Licensee asked three times whether Mr Scott was ‘right to ride’ and each time Mr Scott answered: ‘Yes, I'm fine’. The Licensee then said he would grab the motorcycle keys and the keys to the plant room. He unlocked the plant room. Mr Scott...