Second Defendant
46 Despite suggestions to the contrary - See W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 at 351, in considering whether there is any liability in the Second Defendant a convenient starting point is to ask whether there was a sufficient proximity between the Plaintiff and the Second Defendant to give rise to a duty of care in and about the serving of alcohol. I have no doubt there was.
47 General experience teaches one that clubs such as the Second Defendant have as part of their activities the provision of such drinks and other services such as gambling facilities to members and other persons for profit to the club. Generally, the greater use of these services, the greater the profit. It may be that, given the provision of free Spumante, for a time on the morning of 26 June 1994 the club was suffering a loss but its generosity was at least calculated to bring persons into the club - persons who might well, through their use of other facilities or staying on as the Plaintiff did, make a useful contribution to the club coffers. Indeed, Mr Pringle agreed that at the time attempts were being made by him as secretary/manager to enhance the club's financial returns and that the introduction of the Sunday morning breakfasts was one of the tactics he employed to this end.
48 Of significance also to the question whether a duty arose is the fact that it was alcohol that the club was supplying - a substance which can, if some restraint is not exercised, lead to situations of danger both for those who partake of it and to others. No great experience of the world is needed to know that a significant number of imbibers become aggressive, disinhibited or suffer from a deterioration in judgment with consequent danger to themselves and others. At the time of trial and, I would infer, in 1994, Mr Pringle was aware of such dangers.
49 Also relevant is the fact that the club had a degree of control over what was occurring. Not only could it refuse to supply alcohol once the Plaintiff was intoxicated within the meaning of s44 of the Registered Clubs Act, that provision placed its employees under a duty to refuse.
50 Furthermore, physical damage to someone who becomes intoxicated, whether through simply falling over, or from a more complicated chain of events was certainly foreseeable.
51 Of course, regard must be had also to the fact that the Plaintiff as an adult might fairly be assumed to have knowledge herself of the consequences of ingestion of alcohol. However common experience teaches that there are both persons who are not capable of controlling their intake and persons who, whatever their usual ability, sometimes lose their sense of discretion under alcohol's disinhibiting effects. This experience leads me to the conclusion that the possibility that the Plaintiff may have been, either at the beginning of the day or throughout it, capable of limiting her intake, does not preclude the duty arising.
52 And although I do not regard it as essential to the duty arising, the evidence to which I have referred shows that the Plaintiff was intoxicated long before she left the club. Even if one took the view that there was no duty owed to a patron who was both sober and showed no indications of becoming intoxicated - and I would not so limit it - once it came to the notice of the club that the Plaintiff was intoxicated the duty existed.
53 For these reasons, I am of the opinion that there was at relevant times a duty owed by the Second Defendant to the Plaintiff to take reasonable care in and about the serving of alcohol. To so hold is, I appreciate, to go beyond the decisions of the Supreme Court of Canada in Jordan House Ltd v Menow (1973) 38 DLR (3rd) 105 and in Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222 to which I was referred but the factors which I have mentioned justify doing so.
54 My conclusion may also be inconsistent with part of the remarks of Derrington J in Johns v Cosgrove (1997) 27 MVR 110 at 114 where his Honour said:-
"It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonably foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this."
55 However, his Honour's reference to negligence obscures the issue of whether he was talking about duty, breach or a combination of both.
56 Of course, it is one thing to say that a duty existed. It is another to define or describe its (minimum) content. Having regard to the subject matter, I think this must be done by reference to the term "intoxicated" despite the difficulties arising from the lack of precision in that term. Thus there is common acceptance that there are degrees of intoxication - see Words and Phrases (Judicially Defined in Canadian Courts) and Judicial and Statutory Definitions of Words and Phrases collected by the staff of the American National Reporter System" and the cases cited in those publications. The word is used by some to describe any altered state arising from the use of alcohol even if the manifestations of that state are but an increase in willingness to laugh, increase in the volume of speaking or some greater excitability, but it is difficult to see that any duty should be defined by that sort of test. And even the definition in the Oxford (2nd ed., on compact disk) raises as many questions as it answers:-
"The action of rendering stupid, insensible, or disordered in intellect with a drug or alcoholic liquor; the making drunk or inebriated … The action or power of exhilarating or highly exciting the mind; elation or excitement beyond the bounds of sobriety"
57 The definition of Fair J in R v Ormsby (1945) NZLR 109 that under the New Zealand Motor Vehicles Act a person is in a state of intoxication "when as a result of his consumption of intoxicating liquor, his physical or mental faculties, or his judgment, are appreciably and materially impaired in the conduct of the ordinary affairs or acts of daily life" is more useful but there is some scope for differences in view as to what was intended to be encompassed by the phrase "appreciably and materially". Does "appreciably" refer to manifestations apparent to an observer?
58 For the purposes of my use of the term "intoxicated" in this part of my Reasons I would define it as a state wherein there is, due to the effects of alcohol or drugs, a loss of self-control or judgment which is more than of minor degree. Experience suggests that once a state answering that description is reached, the person affected has a significantly increased risk both of going on to become even more intoxicated and of suffering injury. By the time the effect of loss of self-control or judgment can be described as "moderate", that stage of significantly increased risk has arrived.
59 The obligation of reasonable care seems to me to involve a refusal of service if it can be seen that the provision of alcohol is certain to, or probably will, lead to intoxication such as I have defined it. A fortiori, when alcohol is supplied to someone who has already reached such a state of intoxication. I have said "certain to, or probably will". Given the facts of this case, it is unnecessary that I go on to consider lesser degrees of possibility.
60 It was neither pleaded nor argued that there was also a duty of care owed by the Second Defendant to the First Defendant and accordingly, I need not consider that question.
61 Was there a breach of that duty which I have described? Before this question can be answered in the affirmative, it seems to me that on the facts of this case it must be shown that the Second Defendant served the Plaintiff alcohol at a time when it was apparent she was intoxicated, or at least approaching that state. Of course there are other matters that must also be considered. The proposition I have stated but constitutes an essential minimum.
62 Combined with her evidence that the Plaintiff was drunk at midday, the evidence of Mrs Hughes that at about 12.30 the Plaintiff had a full bottle of Spumante leads to the conclusion that the Plaintiff was served that bottle shortly before that time. Given the Plaintiff's wont to drink that day, it is in the highest degree unlikely that a full bottle would have remained in that state for long. Given the Plaintiff's state, which on Mrs Hughes' evidence was obvious, I would regard the supply of that bottle as a breach of duty.
63 There is no direct evidence that the Second Defendant served the Plaintiff again that day. Mrs Pringle said that sometime between 2 and 3 pm she refused to serve the Plaintiff and the possibility exists that any alcohol drunk by the Plaintiff after the 12.30 bottle may have been purchased by her friends or the group she was with. Nevertheless, I think the probability is that the Plaintiff was served alcohol again. Given her access to the Spumante bought by Mrs Hughes, - access apparently used - the period of only 2 hours between about 10.30 when the free drinks ceased and about 12.30 when she was seen with the full bottle is sufficiently short as to make it more likely that she bought a further 1 rather than 2 bottles within that time.
64 The fact that the Plaintiff as an adult might fairly be assumed to have knowledge herself of the consequences of ingestion of alcohol is also relevant to the question of breach. However, the state in which the Plaintiff was in leads to the view that in this case that factor does not provide a sufficient answer to the suggestion of breach.
65 Any consideration of the question whether the Second Defendant breached its duty of care to the Plaintiff, as was causative of any damage, must include consideration of the availability of, and Mr Pringle's endeavours to persuade the Plaintiff to use, the club's courtesy bus and a taxi cab. Had the Plaintiff been sober and in full possession of her faculties at the time, it would be hard to argue that her decision not to use these facilities and then walk on the road meant that, vis a vis the Second Defendant. the accident was all her own fault and something for which the Second Defendant bore no responsibility. However the Plaintiff was not sober. As both common experience indicates may happen, and as Mr Pringle said when asked as to the Plaintiff's response to the courtesy bus, "As with most drunks do when you turn the grog off them, they become upset". Against that experience, the matters referred to in the first sentence of this paragraph are not sufficient to prevent the Second Defendant's contribution to the Plaintiff's intoxication amounting to a breach of its duty of care.
66 Applying the test in Wyong Shire Council v Shirt 146 CLR 4 at 47, it seems to me inescapable that a reasonable man in the position of the Second Defendant would have foreseen that his conduct - in supplying alcohol to the Plaintiff, someone who could be seen to be intoxicated or who would probably or certainly enter that state on the consumption of that alcohol, involved a risk, or increased risk, of injury to her. It may be accepted that the probability of harm was low, although the magnitude of any harm should it eventuate was liable to be high. There was little, if any, expense, difficulty and inconvenience in taking alleviating action - declining to serve the Plaintiff once intoxication or any likelihood of it became apparent - and no conflicting responsibilities. The making of a greater profit does not come within that description. In my view a reasonable man's response to the risk would be not to incur it.
67 Thus, in my view the Second Defendant was in breach of its duty of care to the Plaintiff.
68 There can be no doubt that the supply of alcohol in the form of what I may call the 12.30 bottle and the later one, was a contributing cause of the injury she later suffered.