Below is an edited summation of the two rulings. Full versions of both judgements can be found by clicking here.
CAL NO 14 PTY LTD t/as TANDARA MOTOR INN & ANOR v MOTOR ACCIDENTS INSURANCE BOARD
CAL NO 14 PTY LTD t/as TANDARA MOTOR INN & ANOR v SANDRA SCOTT
A hotel licensee and a customer made an informal arrangement to avoid the potential consequences of the customer being breathalysed. The customer handed over his motorcycle and its keys to the licensee. Later, having consumed a considerable quantity of alcohol, he required their return. On the way home, riding the motorcycle, the customer had an accident and was killed. The High Court today held that neither the proprietor of the hotel nor the licensee had a legal duty to refuse the customer access to the motorcycle and the keys to prevent him suffering an injury which might result from his consumption of alcohol.
On 24 January 2002 Shane Scott met a friend at the Tandara Motor Inn at about 5.15pm for a drink. A rumour circulated through the hotel that a police breathalyser was operating near Mr Scott’s home. At the urging of his friend Mr Scott made an informal arrangement with the licensee to hand over the keys of his wife’s motorcycle (which he was driving) and have the motorcycle secured in a storeroom, in order to avoid the police breathalyser. The licensee understood, when the arrangement was made, that Mrs Scott would be called to collect her husband when he wanted to leave.
At about 8.15pm Mr Scott decided to go home but emphatically refused the licensee’s offer that his wife be called. He requested the keys to the bike and, to three separate enquiries as to whether he was “right to ride” replied, “Yes, I’m fine”. The licensee retrieved the motorcycle from the storeroom and handed the keys over to Mr Scott. He then rode off. Seven hundred metres from his home, which was about seven kilometres from the hotel, he ran off the road and suffered fatal injuries. At the time of the accident his blood alcohol content was 0.253.
In proceedings in the Supreme Court of Tasmania Mrs Scott and the Motor Accidents Insurance Board of Tasmania (MAIB) (which, pursuant to applicable Tasmanian legislation, had paid sums to or on behalf of Mrs Scott) alleged that CAL No 14 Pty Ltd (the proprietor of the Tandara Motor Inn) and the licensee both owed duties of care to Mr Scott, which they had breached. The trial judge held that neither owed any relevant duty of care to Mr Scott. However the Full Court of the Supreme Court of Tasmania, by a majority, held that each of the proprietor and the licensee owed a duty of care to Mr Scott and that their breach of that duty had caused his death. The High Court granted special leave to appeal the Full Court’s decision.
In the High Court the MAIB and Mrs Scott (the respondents) argued that the licensee had a duty to comply with the agreement reached between him and Mr Scott to ring Mrs Scott when Mr Scott decided he wanted to go home. In failing to make the call the licensee breached that duty of care, thereby causing Mr Scott’s death. The High Court rejected this argument. Even if the licensee had owed such a duty to Mr Scott it was impossible to conclude on the basis of the evidence either that he could have made such a call or, if he had made such a call, that it would have prevented Mr Scott’s death. The Court also considered that, if the licensee had owed such a duty to Mr Scott, he had complied with the duty when he offered to call Mrs Scott at around 8.15pm – an offer which was rejected.
The High Court held that the licensee owed no relevant duty of care to Mr Scott. The informal arrangement for the storage of the motorcycle was made for Mr Scott’s convenience, and did not empower the licensee to deny Mr Scott’s right to recover the keys and the motorcycle, should he request them. The Court also held that the duty argued for by the respondents would have conflicted with Mr Scott’s right and capacity to act in accordance with his own wishes, and would also have been incompatible with other legal duties which bound the licensee. The High Court allowed each appeal and ordered judgment in favour of the proprietor and the licensee.
ADEELS PALACE PTY LTD v ANTHONY MOUBARAK
ADEELS PALACE PTY LTD v ANTOIN FAYEZ BOU NAJEM
Adeels Palace should not be held liable for injuries arising from violent conduct, in the circumstances where the evidence did not establish there was action it could have taken which would, on the balance of probabilities, have prevented that conduct from occurring, the High Court held today. In the early hours of New Year’s Day 2003 a dispute arose on the dance floor of the Adeels Palace Restaurant, after a female patron accused another of brushing her hand with a lighted cigarette.
Fighting erupted and became “more ferocious very quickly”. One of the patrons left the restaurant after he was struck in the face. He returned soon after with a gun. In an unprovoked act he shot Mr Bou Najem in the leg in the restaurant’s kitchen. He then went into the restaurant proper and found Mr Moubarak, the man who had struck him. He shot Mr Moubarak in the stomach. Mr Moubarak and Mr Bou Najem both sued Adeels Palace, alleging that they had suffered their injuries as a result of the negligence of Adeels Palace in failing to provide any or any sufficient security during the New Year’s Eve function. Both men were successful in the NSW District Court.
The Court of Appeal for NSW dismissed appeals filed by Adeels Palace. The High Court granted Adeels Palace special leave to appeal. The High Court held that the issues in the case had to be determined in the light of the relevant provisions of the Liquor Act 1982 (NSW) and the Civil Liability Act 2002 (NSW). The High Court concluded that, concomitant with its responsibilities under the Liquor Act to not permit indecent, violent or quarrelsome behaviour on licensed premises and to eject persons who engaged in such
behaviour, Adeels Palace owed a duty to all of its patrons (including Mr Moubarak and Mr Bou Najem) to take reasonable care to prevent injury arising from the violent, quarrelsome or disorderly conduct of other persons.
However, the High Court held it was unnecessary to determine whether there had been a breach of the duty. That was because the evidence did not establish that the provision of greater security, to the level which Mr Moubarak and Mr Bou Najem argued should have been provided, would have either deterred or prevented the gunman from re-entering the restaurant. Section 5D of the Civil Liability Act required Mr Moubarak and Mr Bou Najem to establish that the restaurant’s negligence in failing to provide any or any sufficient security was a necessary cause of the damage they each suffered, but the evidence only went so far as to establish that if there had been more security in the restaurant on New Year’s Eve that might have prevented the damage caused by the gunman. It did not show that more security would, on the balance of probabilities, have prevented their injuries. The High Court allowed each appeal and ordered that the decisions of both the Court of Appeal and the District Court be set aside.
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