By Clyde Mooney – editor Australian Hotelier

Patrons are legally accountable for reckless acts they may carry out on licensed premises that occasion injury, according to a legal expert.

Following the incidence of an accidental death associated with Sydney hotel Jacksons on George, commercial law firm Madgwicks responded to a request from TheShout for comment on operator liabilities. 

Madgwicks' special counsel Scott Aitken declined to comment on the specific circumstances of the incident at Jacksons.

But he advised that while publicans always have a duty of care to their patrons, there is precedent history for drunken occupants being held accountable for their own actions. 

"The good news is that the courts have consistently started with the idea that adults, without obvious mental or physical impairment, ought to be able to exercise their 'free will'.  

"Accordingly, drinking until intoxicated is a deliberate act which must carry with it personal responsibility.  

"So as a starting point, if someone ends up intoxicated and does something stupid, it should be in quite rare circumstances that a court will find the publican is liable for the consequences of that stupid act," Aitken said.

He said the operator's liability and duty of care hinges on a logical approach to the likelihood of such an accident. 

"To be liable, the risk must be reasonably foreseeable and you have not responded to that risk as would a reasonable person.  

"Relevant considerations are, 'the probability that the harm would occur, the likely seriousness of the harm, the burden of taking precautions to avoid the risk, and the social utility of the activity that created the risk', Aitken said.

The Shout Team

The leading online news service for Australia's beer, wine, spirits and hospitality industries.

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