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Published: Fri, 02 Feb 2018
more restrictive concept of the liability on negligence
• Cole was given to opportunity to have transport.
o The relationship in this case is far from that in CAL as there were hundreds of people in the club and it would be unreasonable for the bartender to look after each and everyone.
o The evidence between the times Cole was cut off, til the time that she was finally asked to leave is lacking. Much ambiguity surrounds this part of the case.
• CAL gave Scott the bike after stopping him from having more drinks (idiot)
o This case has very unusual circumstances. The plaintiff was well known in the community and the relationship with the bar tender was not simply a commercial one.
o It was common practice for the bar tender to call the wives to come and pick up their husbands. Although should this be always relied on as a duty of care? Maybe not this is outside the reasonable duty of care. Although calling a taxi, or other method would not be outside the duty of care.
• Russell V Edwards. 16 year old kid got drunk at a family bbq. Dived in the shallow end of the pool and broke his neck. Didn’t receive any damages.
o Both COLE and CAL involved motor vehicles.
o Legislation in regards to this because there is a much higher risk of injuring a third party if you are on the road driving then if you are at a house party or just a bar drinking.
o Edwards encourage the kids to go for a swim. Not sure if she knew that they had been drinking. It was made clear to the court that Russell was clearly intoxicated.
o Parents owe a duty of car to children (minor)???
o Civil wrongs act section 50 says “(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.” – Although under section 49 this doesn’t apply to motor vehicle accidents.
• Canadian and US laws (dram room)
o Jordan House LDT V Menow.
o Case like COLE, drunk guy walking in the middle of the road got run over.
o “the hotelier’s positive conduct had placed the plaintiff at risk or injury, and apportioned blame equally between the plaintiff, the hotel and the drive.
o Relationship was an invitor invitee relationship.
Under this interpretation does this included house parties?
Probably not there is not commercial arrangement, ie people are not buy drinks from a bar. Although if you are supplying the alcohol how does this affect the situation even if it is free?
• Individual autonomy
o The person who is drinking is taking on the risk by being intoxicated. Although this judge is impaired before they are intoxicated?
o If the judgement is said to be impaired does this mean that the bar tender has a duty of care to that person because they sold them the substance that they become intoxicated by.
• How accurate is that quote in terms on the law.
• Same style as articles given.
Break the question down
• Noticeable trend The way things are heading
• Restrictive concept of liability ie the reforms to reduce the number of negligence claims
o In the context on high risk activities ie intoxication
• Duty of liquor servers (both commercial and social) to their partons/guests
o Especially focusing on Scott V CAL.
[This paper focuses on two cases involving negligence actions for the damages by intoxicated plaintiffs and the duty owed by the defendants. The first case being before civil liability reform, and the second was heard after the reforms. These statutory reforms attempt to find a balance between the legitimate claims for compensation where the defendants conduct has caused damage, and the limitation of tort proceedings involving contributory negligence on behalf of the plaintiff taking control of their own actions and choices and shifting the loss to the defendant where the plaintiff’s actions have been fundamental in causing the damages in question. The context of these claims is both commercial and social and this paper will explore the concept of more restrictive concept of liability]
The fluctuation in widespread civil liability reform is a result of the increased amount litigation for negligence and the large damage awards. Factors that have evoked these reforms are centred on the increased awareness about the public rights to sue for damages, potentially with large damage awards. Contributing to this would be claims that can be based purely on economic loss (e.g. negligent advice regarding investment etc) as well as claims for property damage and personal injury. The result of this increase in negligence litigation was followed by an inevitable swell in insurance premiums as the potential risk rose. At this point government made statutory reforms to limit the scope of civil liability.
The trend in Australian jurisprudence towards a “more restrictive concept of the liability on negligence” is more prevalent in activities that evolve elevated risks such as intoxication, with such risks being clear to the participant. The rudimentary issue is the balance between the responsibility of an individual or a collective for both injury and misfortune. How does this new trend affect the legal duty of social hosts, and hoteliers to their guests and patrons taking into the account legislative reforms?
To answer this question an analysis of two cases , Cole v South Tweed Heads Rugby League Football Club Ltd(‘Cole’) and Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (No 2)(‘Scott’) will be undertaken. The case of Cole is pre statutory reforms, and the more recent of the two Scott is post statutory reforms. It is proposed to examine these cases and asses the affects that have occurred due to these reforms, and thus revealing the trend brought forth by Dixon and Spinak.
II. Cole v South Tweed Heads Rugby League Football Club Ltd
The facts and issues in Cole were recited by Gleeson CJ:
The appellant was injured as a result of being run down by a motor car on a public road. The driver of the motor car was also sued, but she is not involved in the present appeal. The respondent had no connection with the motor car, or the driver. The respondent’s alleged connection with the appellant’s injuries arose in the following manner. At the time she was run down (about 6.20 pm on a Sunday evening), the appellant was walking in a careless manner along the roadway. The motorist was unable to avoid her.
The appellant’s explanation of her careless behaviour was that she was drunk. The appellant had spent most of the day at or around the respondent’s licensed club. The respondent supplied her with some, but not all, of the drink she consumed. The appellant blames the respondent for her presence on the road in an intoxicated state, and for her injuries.
Two aspects of the conduct of the respondent are said to involve fault. First, it is said that the respondent supplied the appellant with drink at a time when a reasonable person would have known she was intoxicated. Secondly, it is said that the respondent allowed the appellant to leave its premises in an unsafe condition, without proper and adequate assistance.
An appeal was made to the High Court of Australia, which was subsequently dismissed.
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