In this week’s instalment of citizen journalism, president of the Australian Hotels Association (AHA) NSW, Scott Leach, argues that recent court decisions reaffirm the need for consumers of alcohol to take personal responsibility for their actions.
“When Shane Scott’s motorcycle crashed off the road killing him in January 2002, there were never going to be any winners.
A 41-year-old man had lost his life, a family was left to grieve, and a legal trail of claim and counter claim, travelled all the way to the High Court.
And last Tuesday the High Court handed down its decision, dramatically shifting the responsibility for drinking actions on to the individual, ruling that licensees have no general duty of care to protect patrons from the consequences of their own actions.
In the words of the High Court’s unanimous judgment it had tilted responsibility for the safety of drinking patrons towards “the drinker, rather than the seller of drink.”
This was a victory for commonsense.
The High Court decision overturned an earlier ruling that held a Tasmanian hotel liable for returning Shane Scott’s motorcycle keys before he crashed and died on the way home.
What this means for the industry is that while a licensee needs to be vigilant in terms of their Responsible Service of Alcohol responsibilities and other statutory requirements, at some point a line is a drawn and an individual must also take responsibility for their own actions and decisions.
In other words be responsible, don’t expect other people to be responsible for you.
The publican at the centre of this case, Michael Kirkpatrick, formerly of the Tandara Motor Inn has finally emerged from a seven year nightmare.
The High Court was told, on the night of the tragedy, Michael Kirkpatrick had an agreement with Shane Scott.
The publican would take the drinker’s motorcycle keys, store the bike, and as Mr. Kirkpatrick understood, at the end of the night call the drinker’s wife to pick him up, because rumour had it there was a police breath-testing unit in the area.
When it was time to leave, Mr Scott demanded his keys back in an aggressive manner. He refused to give the publican his wife’s telephone number.
And also refused two or three offers of a lift home by another patron.
Eventually, after asking the customer three times if he was “right to drive”, to which the customer replied “yes, I’m fine”, the licensee handed over the keys.
He watched Mr. Scott back the motorcycle out of the storeroom without any apparent trouble and drive away.
Seven hundred metres from his home, Shane Scott’s bike ran off the wrong side of the road. He died with a blood alcohol reading of .253.
The High Court found that Michael Kirkpatrick, in the final analysis, did not have the legal right to refuse to give Shane Scott back his keys.
The Court also underlined the difficulties faced by licensees in assessing whether a drinker has reached the point of intoxication.
The judges noted that people reacted differently to varying volumes of alcohol and licensees had no way of knowing how much alcohol patrons had consumed before arriving at the premises.
It begs the question whether the community, Government, police and industry have been deluding themselves that Responsible Service of Alcohol is the silver bullet to single handedly changing the drinking culture in Australia.
Obviously it is an important factor, as is personal responsibility, education and other local solutions. Until Government, industry and all stakeholders can start to work together cooperatively however, to bring about a more positive drinking culture – will we continue to see tragic incidents like this occur.
While this is a sad lesson, the High Court decision reinforces the message that both the Australian Hotels Association (NSW) and the police have been promoting for a long time – which is “think before you drink”.
Plan your night ahead. If you’re going to have a few drinks don’t take the car or motorcycle with you. Book a cab, arrange for a friend to collect you, or take public transport.
In short, be responsible.”
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