Queensland Law Society

A Victory for Common Sense?

An interesting article appeared in The Australian on Wednesday, 11 November 2009, about the High Court's incredible decision to hold drunken individuals responsible for their actions.  Specifically, the High Court has ruled that the nation's publicans do not have a general duty of care to protect their patrons from the consequences of getting drunk.

Five judges overturned an earlier Tasmanian Supreme Court decision that found Michael Kirkpatrick,  the then publican of the Tandarra Motor Inn on the Tasmanian east coast, had failed in his duty of care when he returned motorbike keys to a patron, Shane Scott, who was then killed when he drunkenly ran off the road just short of his home destination.

A colourful picture of the night's events have been painted by Paul Colgan of The Punch in his online column.  According to other patrons that night, Mr Scott did not appear drunk and Mr Kirkpatrick only returned the keys after being convinced of this following an argument between the two.

This latest decision is bound to entice public debate on both sides.  But shouldn't it be a case of 'about time' in the Common Sense Stakes?

No one would be able to argue that there is a lack of public education about the dangers of imbibing too much alcohol.  The campaigns are one we are all familiar with:

• Drink, Drive, Bloody idiot!
• Don't turn a night out into a nightmare.
• Drink drive.  You lose.

Tragically, Shane Scott (and unfortunately so many othes like him) didn't heed this well-thought-out advice, and chose to drive home that night.

It is often difficult for publicans working under the responsible service laws and trying to do the right thing, to accurately define 'intoxication', 'inebriation' and 'drunkenness'.  The signs are as individual as the drinker.  As stated in the article, "The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care..."

So why hold them responsible?  Is it not about time drinkers were held accountable for their own actions?

This High Court decision has been hailed a 'victory for common sense'.  What do you think?

You can read the full details of the judgement here.