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[2004] HCA 29
respondent. Appeal dismissed with costs. The Court of Appeal’s judgment in favour of the Club remained in place.
The High Court dismissed Ms Cole’s appeal, so the Club was not held liable for her injuries. The judges did not all agree on why. Gleeson CJ and Callinan J rejected a general duty requiring a supplier to protect an adult from the consequences of voluntarily drinking to excess. Gummow and Hayne JJ left the general duty question open, but considered that any breach concerning the supply of alcohol was not shown to have caused the collision and that the Club had offered safe transport, which Ms Cole refused. McHugh J and Kirby J dissented and would have found for Ms Cole.
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2,485 words · generated 05/10/2026
The appeal arose from injuries Rosellie Jonnell Cole suffered when she was struck by a vehicle on a road near the South Tweed Heads Rugby League Football Club. She had been at or around the Club for much of Sunday, 26 June 1994, drinking alcohol. The Court records that she began drinking at about 9.30 or 10 am [6], [113]. The Club held a champagne breakfast that morning, with 24 bottles of spumante for about 100 attendees [61]. Later, Ms Cole and a friend shared a bottle, and at about 12.30 pm the Club sold Ms Cole another bottle [62]-[63].
3 cited instruments linked from this judgment.
A critical factual point was what the Club supplied and what its staff knew. The Court of Appeal’s findings, accepted in the High Court, did not establish that the Club supplied Ms Cole alcohol after the 12.30 pm bottle. She obtained alcohol during the afternoon, but the evidence did not identify its source. The Club refused service when she sought more at about 2.30 or 3 pm [64]. The record also described her as seriously intoxicated later in the afternoon.
At about 5.30 or 6 pm, the Club manager asked Ms Cole to leave. He offered a courtesy bus or a taxi to take her home. She refused both offers, and one of her companions said they would look after her [22], [50]. At about 6.20 pm, approximately 100 metres from the Club, she was struck by a vehicle. Her blood alcohol content was later measured at 0.238 gm per 100 ml [51].
At trial, Hulme J found for Ms Cole against the Club and the driver, attributing 30 per cent responsibility to each and 40 per cent to Ms Cole [52]. The New South Wales Court of Appeal allowed the Club’s appeal and the driver’s cross-appeal, setting that judgment aside [53]. In the High Court, Ms Cole appealed only in relation to the Club [54]. The appeal was dismissed with costs.
The central significance of the judgment is its divided reasoning. Gleeson CJ and Callinan J rejected a general duty to protect an adult patron from the consequences of voluntary excessive drinking. Gummow and Hayne JJ said the duty question should not be decided on the way the case had been pleaded and proved, and found other grounds sufficient to dismiss the appeal. McHugh J and Kirby J dissented.
Gleeson CJ began with the harm and the chain of events, rather than an abstract statement that the Club owed a duty to its patron. He considered the relevant harm to be injury from Ms Cole’s careless conduct as a pedestrian, which was attributed to intoxication several hours after the relevant proven sale by the Club [1]-[3], [8]. On his analysis, the claim required a duty to protect an adult from physical injury resulting from her own excessive consumption, and a breach of that duty.
The Chief Justice rejected a general duty of that kind. He emphasised that alcohol affects people differently, that the risk of injury can arise before a person shows a high degree of intoxication, and that suppliers may not know what a patron has previously consumed, what they will do with alcohol purchased, or what they intend to do after leaving [10]-[13]. He also considered the interference with privacy and freedom that monitoring and controlling adult customers could entail [14]-[15]. His reasoning relied on personal autonomy and legal responsibility for voluntary choices, while recognising that exceptional circumstances might be different [17].
The statutory context did not change his conclusion. Section 44A of the Registered Clubs Act 1976 (NSW) prohibited supplying liquor to an intoxicated person, but the Court was not deciding a statutory-duty claim. Gleeson CJ considered that a person could face risks from alcohol before reaching the statutory level of intoxication, so the provision did not establish the broader common-law duty argued for [16].
Gummow and Hayne JJ took a different route. They explained that the appellant’s case combined questions of duty and breach, and that the evidence left unresolved matters central to defining the proposed duty. These included what “serving” alcohol meant, how the Club could control alcohol supplied by one patron to another, what staff could observe, and what level of intoxication should trigger intervention [56]-[73]. They therefore considered it neither necessary nor appropriate to decide whether the proposed duty existed [81].
Instead, the joint reasons examined causation and the departure from the Club. Even assuming a duty to monitor and moderate drinking, they concluded that any breach was not a cause of the injuries on the case presented. The Club had offered safe transport; Ms Cole refused, and companions said they would look after her [76], [80]. The joint reasons also stressed that the evidence did not establish what happened between her leaving and the collision [50], [76].
Callinan J assumed, for argument’s sake, that a relevant duty existed, but found no breach. He considered that counselling, restraint or an attempt to sober Ms Cole up was not a reasonable response in the circumstances he described, and that the transport offers were sufficient [125]-[126]. He also considered the statutory provisions and concluded that they did not assist Ms Cole’s claim [127]-[128].
McHugh J and Kirby J dissented. McHugh J considered that a club occupier’s duty extended to activities on the premises, including supplying beverages, and could require affirmative action to prevent harm [30]-[41]. He considered the intoxication, subsequent refusal of transport and companions’ intervention in light of causation and foreseeability, and would have allowed the appeal [42]-[47]. Kirby J also favoured a duty, reasoning that the Club’s commercial role and the risks associated with alcohol supported responsibility for a vulnerable patron [89]-[98]. Those positions did not prevail.
The judgment was not a unanimous, single-rationale ruling that no supplier of alcohol can ever owe a duty to a patron. The difference between the majority reasons matters.
Gleeson CJ rejected the general duty advanced on the facts of this case, while leaving open that a particular person or exceptional circumstance might support a duty [17]. Callinan J likewise stated a general position against tort liability for the voluntary excessive consumption of alcohol, while acknowledging possible exceptional cases [131]. By contrast, Gummow and Hayne JJ expressly declined to decide the existence or content of the proposed duty [81]. They resolved the appeal through their assessment of the evidence, breach and causation.
Accordingly, the judgment supports a cautious account of the Australian law as at 15 June 2004: the Court dismissed this claim, but the reasons do not yield a single majority formulation answering every possible duty question involving alcohol suppliers. The factual basis was important: the proven direct supply was at about 12.30 pm, no later supply by the Club was established, service was refused at about 3 pm, and safe transport was offered at departure [63]-[64], [76]-[80].
The judgment also records competing views about the role of autonomy, control and statutory regulation. Gleeson CJ relied on autonomy and the practical burdens of a general monitoring duty [13]-[18]. McHugh J and Kirby J considered that an occupier’s control and the risks of alcohol could support affirmative protective duties [34]-[40], [91]-[98]. The Court’s order dismissed the appeal, but those dissenting reasons are not holdings of the Court.
On statutory law, the judgment considered ss 44A and 67A of the Registered Clubs Act 1976 (NSW). Gummow and Hayne JJ said the provisions appeared directed chiefly, if not exclusively, to maintaining order on club premises, and that no breach-of-statutory-duty claim had been made [74]-[75]. Gleeson CJ similarly found s 44A did not establish the broader common-law duty argued for [16]. Kirby J took a different view of the provisions’ significance [94]-[95]. The judgment does not set out later amendments as a basis for a general account of the present statutory law.
Gleeson CJ cautioned against deciding duty at too abstract a level: “it is of little assistance to consider issues of duty of care, breach, and damages, at a high level of abstraction, divorced from the concrete facts” [1]. In plain English, the legal question needed to be connected to the actual injury, the alleged acts and omissions, and the events between the Club and the collision.
On autonomy, he wrote that intoxicated people generally remain responsible for their actions and that, as a general rule, they should not avoid responsibility for risks accompanying a personal choice to drink [13]. This was part of his reasoning against imposing a general protective duty on the supplier in this case. It was not a finding that no exceptional duty could ever exist: he expressly left that possibility open [17].
Gummow and Hayne JJ warned that the proposed duty raised questions the evidence could not answer. Their reasons ask, for example, whether serving includes selling alcohol to someone else who may share it with the patron, how staff are meant to observe consumption across a large and changing group, and what level of intoxication is relevant [66]-[72]. Their plain-English point is that the legal duty could not sensibly be defined without deciding those practical and evidentiary matters.
The joint reasons’ central procedural and analytical point was that it was “neither necessary nor appropriate to decide any question about the existence of a duty of care” [81]. They did not hold that a duty was impossible. They considered the pleaded case and evidence insufficiently suited to deciding its existence or content, and resolved the appeal on other grounds.
McHugh J’s dissent sets out a different view of the duty’s reach. He said an occupier’s duty extended to activities on the premises, including supplying food and beverages [31]. He considered that the Club’s ability to control its premises and patrons could entail taking affirmative action to prevent harm [34]-[40]. In plain English, his approach treated the Club’s control and its opportunity to observe Ms Cole as central.
Kirby J’s dissent similarly emphasised vulnerability and commercial supply [85]-[96]. His reasoning was that alcohol may undermine a person’s ability to protect herself, and that this risk could support a duty in the circumstances he considered proved. These are dissenting reasons, not the outcome adopted by the Court.
The closest fact pattern is one involving an adult patron who consumes alcohol over an extended period at or around licensed premises, suffers injury after leaving, and alleges that the supplier should have monitored or moderated the drinking or ensured safe departure. The judgment makes the evidence about actual supply especially important. Here, the Court of Appeal’s findings were that the Club supplied a bottle at about 12.30 pm, refused service at about 3 pm, and was not proved to have supplied further alcohol [63]-[64].
The decision also makes the alleged duty’s specificity important. A claim based on direct service to an intoxicated person may present different questions from one based on alcohol supplied to companions, general permission to drink, or failure to control a patron after service has stopped [5], [66]-[73]. The evidence about what staff could see, what they knew, where the patron was, and what happened after departure was material to the reasoning.
Safe-transport offers are another significant feature. The manager offered Ms Cole a courtesy bus or taxi, and she refused [22]-[24]. Gummow and Hayne JJ treated that response as material to whether a duty relating to safe departure had been discharged and to whether any earlier breach caused the injury [76]-[80]. The judgment does not establish that an offer of transport will resolve every case: it discusses the particular circumstances and evidence before the Court.
Finally, the case involved an adult without a known disability or known alcoholism [4]. Gleeson CJ’s reasoning expressly addressed an ordinary adult who voluntarily chose to drink. The judgment therefore should not be treated as resolving all cases involving a person known to be unusually vulnerable, a person unable to make decisions, a person placed in a known danger, or materially different conduct by the supplier. Gleeson CJ left exceptional cases open [17].
The supplied judgment contains no decisions by later courts and gives no account of how later courts treated Cole. It would therefore be unsupported to claim from this source that a later court followed, distinguished, narrowed or expanded its reasoning.
What the judgment itself does show is how its members treated earlier authorities. Gleeson CJ relied on Sullivan v Moody concerning coherence in recognising a new duty [14], and discussed Reeves v Commissioner of Police of the Metropolis in connection with duties to protect a person from self-injury [14]. McHugh J cited Graham Barclay Oysters Pty Ltd v Ryan on the appropriate level of specificity when formulating a duty [56]. Kirby J referred to Canadian and other authorities, including Jordan House Ltd v Menow and Stewart v Pettie, in support of his dissenting approach [93]. Callinan J disagreed with propositions he considered might be deduced from those Canadian cases [132].
These references describe the reasoning within this judgment, not its subsequent reception. A reliable account of later treatment would require later decisions, which are not included in the supplied material.
Several questions remain open on the face of the reasons. First, Gleeson CJ accepted that exceptional circumstances might support a duty to protect a particular person from risks associated with self-induced intoxication, but did not define those circumstances [17]. The judgment does not provide a complete test for deciding when a case falls within that exception.
Second, Gummow and Hayne JJ deliberately did not decide whether a supplier owes a duty to monitor or moderate a patron’s alcohol consumption [57], [81]. Their reasons identify unresolved matters about the meaning of “serving”, third-party supply, observation, relevant intoxication and practical intervention [66]-[73]. The judgment supplies no comprehensive answer to those questions.
Third, the judgments differ over how autonomy should be weighed against a supplier’s control and knowledge. Gleeson CJ and Callinan J emphasised adult choice and the consequences of a broad protective duty [13]-[18], [130]-[132]. McHugh J and Kirby J considered that control of premises, the effects of alcohol and a patron’s vulnerability could justify affirmative action [34]-[40], [91]-[98]. The order resolves this appeal, but the dissenting analysis records a competing account of the relevant principles.
Fourth, causation may turn on facts about the patron’s departure, the effect of intoxication on decisions, any offer of transport, and what happened after leaving. The joint reasons considered those matters decisive on this record, while McHugh J and Kirby J reached a different view of the causal link [42]-[45], [76]-[80], [99]-[105]. The judgment does not establish a universal rule for how a refusal of transport affects causation.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
ROSELLIE JONNELL COLE APPELLANT
AND
SOUTH TWEED HEADS RUGBY LEAGUE FOOTBALL
CLUB LIMITED & ANOR RESPONDENTS
Cole v South Tweed Heads Rugby League Football Club Limited
[2004] HCA 29
15 June 2004
S403/2003
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with E G Romaniuk and P J Woods for the appellant (instructed by Hamilton Quinlan Fenwick)
D F Jackson QC with R J Carruthers for the first respondent (instructed by Colin Biggers & Paisley)
No appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cole v South Tweed Heads Rugby League Football Club Limited
Negligence – Duty of care – Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state – Level of specificity of formulation of duty of care – Whether respondent owed duty to take reasonable care to monitor and moderate amount of alcohol served to appellant – Whether respondent owed duty of care to take reasonable care that appellant travelled safely away from respondent's premises – Whether duty of care existed to protect persons from harm caused by intoxication following deliberate and voluntary decision on their part to drink to excess – Whether duty took into account the vulnerability of some persons to alcohol consumption – Relevance of statutory provisions, creating offences in relation to conduct on club premises and requiring police to eject intoxicated persons from premises, to existence or content of duty of care owed by respondent where no allegation made of breach of statutory duty – Registered Clubs Act 1976 (NSW).
Negligence – Breach of duty and causation – Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state – Whether respondent's offer of safe transport to appellant discharged any duty owed by respondent to take reasonable steps for appellant's safety – Whether assurance by other patrons that they would look after appellant discharged any onus on respondent – Whether, assuming respondent in breach of duty to monitor and moderate consumption, breach of duty was a cause of injuries ultimately sustained – Remoteness of damage – Reasonable foreseeability.
Words and phrases – "intoxication".
Registered Clubs Act 1976 (NSW), ss 44A, 67A.
GLEESON CJ. The appellant, having suffered personal injuries, claims that the first respondent is liable to her in damages for negligence1. In the circumstances of this case, it is of little assistance to consider issues of duty of care, breach, and damages, at a high level of abstraction, divorced from the concrete facts. In particular, to ask whether the respondent owed the appellant a duty of care does not advance the matter. Before she was injured, the appellant was for some hours on the respondent's premises, and consumed food and drink supplied by the respondent. Of course the respondent owed her a duty of care. There is, however, an issue concerning the nature and extent of the duty. To address that issue, it is useful to begin by identifying the harm suffered by the appellant, for which the respondent is said to be liable, and the circumstances in which she came to suffer that harm2. As Brennan J said in Sutherland Shire Council v Heyman3, "a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered". The kind of damage suffered is relevant to the existence and nature of the duty of care upon which reliance is placed. Furthermore, a description of the damage directs attention to the circumstances in which damage was suffered. "Physical injury", or "economic loss", may be an incomplete description of damage for the purpose of considering a duty of care, especially where, as in the present case, the connection between the acts or omissions of which a victim complains and the damage that she suffered is indirect.
The appellant was injured as a result of being run down by a motor car on a public road. The driver of the motor car was also sued, but she is not involved in the present appeal. The respondent had no connection with the motor car, or the driver. The respondent's alleged connection with the appellant's injuries arose in the following manner. At the time she was run down (about 6.20 pm on a Sunday evening), the appellant was walking in a careless manner along the roadway. The motorist was unable to avoid her. The appellant's explanation of her careless behaviour was that she was drunk. The appellant had spent most of the day at or around the respondent's licensed club. The respondent supplied her with some, but not all, of the drink she consumed. The appellant blames the respondent for her presence on the road in an intoxicated state, and for her injuries. Two aspects of the conduct of the respondent are said to involve fault. First, it is said that the respondent supplied the appellant with drink at a time when a reasonable person would have known she was intoxicated. Secondly, it is said that the respondent allowed the appellant to leave its premises in an unsafe condition, without proper and adequate assistance.
"The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does [an] act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged."
Some consumers of alcohol respond quickly to its effects, while others can consume a large quantity without much change of appearance or demeanour. People in both categories may be at risk of injury if they drive a car. To impose on suppliers of alcohol a general duty to protect consumers against risks of injury attributable to alcohol consumption involves burdensome practical consequences. It provides no answer to say that such a duty comes into play only when a consumer is showing clear signs of a high degree of intoxication. The risk sets in well before that. The appellant argued that there is a duty on a supplier to "monitor" alcohol consumption. The capacity of a supplier of alcohol to monitor the level of risk to which a consumer may be exposed is limited. If a restaurant proprietor serves a bottle of wine to two customers at a table, the proprietor may not know what either of them has had to drink previously, the proportions in which they intend to share the bottle, or what they propose to do when they leave the restaurant. Few customers would take kindly to being questioned about such matters.
There is a further question of principle bearing upon the reasonableness of the imposition of a duty of the kind for which the appellant contends. Most adults know that drinking to excess is risky. The nature and degree of risk may be affected by the extent of the excess, or by other circumstances, such as the activities in which people engage, or the conditions in which they work or live. A supplier of alcohol, in either a commercial or a social setting, is usually in no position to assess the risk. The consumer knows the risk. It is true that alcohol is disinhibiting, and may reduce a consumer's capacity to make reasonable decisions. Even so, unless intoxication reaches a very high degree (higher than that achieved by the appellant in this case), the criminal and the civil law hold a person responsible for his or her acts. If, in the present case, the appellant, deliberately or negligently, had damaged the respondent's property, or caused physical injury to some third party, she would have been liable for the damage. There is no suggestion that she lacked the mental capacity to form the necessary intent. Save in extreme cases, the law makes intoxicated people legally responsible for their actions. As a general rule they should not be able to avoid responsibility for the risks that accompany a personal choice to consume alcohol.
The significance of a need for coherence in legal principle and values, when addressing a proposal for the recognition of a new form of duty of care, was stressed by this Court in Sullivan v Moody5. Although there are exceptional cases, as Lord Hope of Craighead pointed out in Reeves v Commissioner of Police of the Metropolis6, it is unusual for the common law to subject a person to a duty to take reasonable care to prevent another person injuring himself deliberately. "On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury." This principle gives effect to a value of the law that respects personal autonomy. It is not without relevance to ask what the appellant says the respondent should have done by way of monitoring and controlling her behaviour. Whatever exactly it might have been, it would seem to involve a fairly high degree of interference with her privacy, and her freedom of action. It is not difficult to guess what the appellant's response would have been if the person who sold her a bottle of wine at 12.30 pm had demanded to be told whether she intended to drink it all herself. A duty to take care to protect an ordinary adult person who requests supply from risks associated with alcohol consumption is not easy to reconcile with a general rule that people are entitled to do as they please, even if it involves a risk of injury to themselves. The particular circumstances of individual cases, or classes of case, might give rise to such a duty, but we are not here concerned with a case that is out of the ordinary.
Order
The appeal should be allowed with costs.
GUMMOW AND HAYNE JJ. On Sunday, 26 June 1994, the first respondent ("the Club") held a champagne breakfast at its clubhouse, next to grandstands built beside the Club's football ground. Several football matches were played at the ground that day, from about 11.30 am to about 5.00 pm.
The appellant went to the breakfast with three friends. The appellant consumed a lot of liquor. One of the friends who went to the Club with her later gave evidence that, by about 1.45 pm, the appellant was "absolutely drunk". Two of the appellant's friends left the Club at about noon; the third, Mrs Fay Hughes, left during the early part of the afternoon. The appellant, having met some New Zealanders, decided to stay at the Club.
At about 6.00 pm, approximately eight hours after the appellant had first arrived at the Club's premises, she was asked to leave the clubhouse. (The appellant and her companions were said to have been touching each other indecently.) The Club's manager offered the appellant safe transport home, either by the Club's courtesy bus, or by taxi. She bluntly (and crudely) refused both offers. One of her companions told the Club's manager that they (her companions) would "look after her". A few minutes later she and her companions had left the premises, whether together or separately the evidence does not reveal.
At about 6.20 pm, on a road about 100 metres north of the Club's premises, the appellant was struck by a four wheel drive vehicle driven by the second respondent. No one was then with the appellant. The appellant's blood alcohol content was later found to be 0.238 gm per 100 ml. It was estimated that to reach this blood alcohol result she would have had to have consumed 16 standard drinks9.
The proceedings below
The appellant brought an action in the Supreme Court of New South Wales for damages for the injuries she sustained in the collision, naming as defendants the Club and the driver of the vehicle that struck her. At first instance, the appellant obtained judgment against both the Club and the driver10. The primary judge (Hulme J) found the appellant to have been contributorily negligent and apportioned responsibility between the parties, as to 30 per cent against the driver, 30 per cent against the Club and 40 per cent against the appellant.
On appeal to the Court of Appeal of New South Wales (Heydon and Santow JJA and Ipp AJA), the Club's appeal and the driver's cross‑appeal were both allowed11. The judgment entered at trial was set aside and, in its place, judgment was entered for the Club and the driver.
The issues
By special leave, the appellant now appeals against only those parts of the judgment of the Court of Appeal which related to the liability of the Club.
Special leave was granted to examine what, if any, duty of care the Club, as a seller of liquor, owed to the appellant. The appellant alleged that her collision with the driver's vehicle was caused, or contributed to, by the Club's negligence.
In Graham Barclay Oysters Pty Ltd v Ryan12, McHugh J observed:
"Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk."
His Honour also emphasised13 that the more specific the terms of the formulation of the duty of care, the greater the prospect of mixing the anterior question of law (the existence of the duty) with questions of fact in deciding whether a breach has occurred. On the other hand, the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined.
The present litigation was pleaded and conducted in such a fashion as to conflate asserted duty and breach of that duty and to make it inappropriate to decide on this appeal any issue respecting the existence or content of a duty of care.
Although put in several different ways, the appellant's case in this Court was anchored in two complaints. First, it was alleged that the Club had been negligent in continuing to serve the appellant alcohol when the Club knew or should have known she was intoxicated. Secondly, it was said that the Club was negligent in allowing her to leave the premises in an intoxicated state. Thus the duties relied on were duties first, to take reasonable care to monitor and moderate the amount she drank, and second, to take reasonable care that she travelled safely away from the Club.
These reasons will seek to show that whether the Club owed either of those duties need not be decided. If the Club owed the appellant a duty to take care that she did not fall into danger of physical injury when she left the Club, it discharged that duty of care by offering her safe transport home, only to be met by her refusal and the offer, from her apparently sober companions, to look after her. If the Club owed the appellant a duty to take care in monitoring and moderating the amount of liquor she took, any breach of that duty was not a cause of the injuries she sustained.
A disputed question of fact
It is convenient to deal first with a question of fact about which the Court of Appeal differed from the primary judge. How much alcohol did the Club serve the appellant?
About 100 people attended the regular Sunday morning champagne breakfasts held by the Club. At each breakfast, two dozen bottles of spumante were provided by the Club for those attending. On the day of the accident, these 24 bottles were consumed in the period between about 9.30 am and 10.30 am, or a little later. Mrs Hughes, one of the friends who had come to the Club with the appellant, said that she, herself, would have had "around about eight" glasses of the free wine. She was unable to say how much the appellant had of the free wine but there is no reason to think it would have been significantly less than Mrs Hughes drank. By contrast, however, another member of the party, Mrs Hughes' husband, took no alcohol.
Once the free wine ran out, Mrs Hughes bought another bottle of the same wine. The appellant and Mrs Hughes consumed that bottle.
At about 12.30 pm Mrs Hughes saw the appellant drinking straight out of another full bottle of spumante. There was no direct evidence that the appellant had bought this bottle herself, but the primary judge found that she did, and the Court of Appeal did not overturn that finding. It may be accepted, therefore, that at about 12.30 pm the Club sold her this bottle of wine ("the 12.30 pm bottle").
The primary judge found that it was probable that the Club served the appellant alcohol after serving her with the 12.30 pm bottle14. As Ipp AJA rightly pointed out in the Court of Appeal15, drawing the inference that the appellant bought alcohol from the Club after the 12.30 pm bottle did not take into account other possibilities that were inconsistent with that inference. Ipp AJA referred to her buying alcohol from persons other than Club employees, and it may be that, as the appellant submitted, this possibility can be discounted. But what cannot be discounted is the real possibility that those in whose company the appellant spent the afternoon at the Club, watching football, gave her the alcohol that she most likely drank during that afternoon. She had, after all, refused to go home with Mrs Hughes because she preferred to stay with others. When it is recalled that there was evidence which the primary judge accepted that the Club refused to serve liquor to the appellant at about 2.30 pm or 3.00 pm, it is evident that the Court of Appeal was right to conclude that the evidence did not permit the primary judge to infer, as he did, that the appellant bought more liquor from the Club after 12.30 pm. All that the evidence showed was that it was more probable than not that she consumed more alcohol during the afternoon. The evidence was silent about who supplied it to her and was silent about whether those who supplied alcohol to the appellant did so from stocks they brought with them to the ground or from purchases made at the Club.
A duty to monitor and moderate the appellant's drinking?
The appellant's contention that her collision with the driver's vehicle was caused or contributed to by the Club's negligence in continuing to serve her alcohol, when the Club knew or should have known that she was intoxicated, was a contention that depended upon taking a number of steps, some (perhaps all) of which may be contested.
First, what exactly is meant by "serving" the appellant alcohol? Does it encompass, or is it limited to, selling alcohol which it is known that the appellant will consume? Does it extend to selling, to others, alcohol which it is suspected that the appellant will consume? How is the Club to control what other patrons may do with bottles of alcohol which the Club sells them? Given the uncertainties about how and from whom the appellant obtained alcohol during the second half of the day, these are questions that go directly to the formulation of the duty which is said to have been breached.
Secondly, the evidence of what the Club knew, or could reasonably be taken to have known, of what alcohol the appellant took during the day was very slight. Mrs Hughes described the appellant as "flitting around and dancing" at about noon. She described the appellant drinking directly from a bottle at about 12.30 pm but she said that then the appellant went outside the clubhouse to "the football area". To do that she passed from an area where Mrs Hughes was playing a poker machine and would have been "in the view of anyone if they had been looking for her to see her for at least 3 or 4 seconds". There was no evidence about how the "football area" was or could have been monitored by Club staff. There was no evidence about whether patrons coming to watch matches could or did bring alcohol with them. Again, these are questions which would have to be considered in deciding whether the Club owed the appellant a duty which it breached.
Unsurprisingly, there was no evidence which would have revealed that servants of the Club could have (let alone reasonably should have) been able to observe how much the appellant drank during the morning. That is, as we say, unsurprising when it is recalled how many patrons attended the Club. About 100 or 120 had attended breakfast. Some of those patrons stayed at, and no doubt others came to, the clubhouse and the ground to attend the several football games to be played that day. There was, therefore, a large and shifting population to observe. If it is said that the Club owed the appellant a duty to monitor and moderate the amount that she drank, it owed all its patrons such a duty. All that the evidence showed was that there were points during the day where Mrs Hughes recognised that her friend was drunk and that in the afternoon the appellant was refused service. Presumably she was then evidently intoxicated. But whether, or when, her intoxication should have been evident to others, and in particular Club staff, was not revealed by the evidence.
Next, what level of intoxication is said to be relevant? Does it mean not lawfully able to drive a motor car? Some drivers may not drive a motor car if they have had any alcohol. Other drivers may be unfit to drive after very few glasses of alcohol. Does "intoxicated" mean, as the primary judge held, "loss of self‑control or judgment which is more than of minor degree"? If that is so, many drinkers will arrive at that point after very little alcohol.
The statutory context
The appellant submitted that it was relevant to notice that the Club was registered under the Registered Clubs Act 1976 (NSW) and that, under s 44A of that Act, it was an offence to permit intoxication on Club premises and an offence to sell or supply liquor to an intoxicated person. It was also said to be relevant to notice that s 67A of the Registered Clubs Act required a member of the police force, when requested by the secretary or an employee of the Club, to turn out or to assist in turning out of the premises of the Club any person who was then intoxicated, violent, quarrelsome or disorderly.
Both of these provisions appear to have been directed chiefly, if not exclusively, to the maintenance of order in registered clubs' premises, not to the safety of the intoxicated patron. Whether or not that is so, no allegation was made of breach of statutory duty, and these provisions shed no light on the problems now presented.
Any breach of duty to monitor and moderate not causative
Breach of a duty by allowing her to leave?
The appellant contended that the Club broke its duty by allowing her to leave its premises in an intoxicated state. It was said that the Club should have "counselled" her before she left, to impress upon her the dangers that might await her. Why that should be so when she was willingly in the company of two apparently sober men offering to look after her is far from clear. And exactly what form this counselling might usefully have taken is equally unclear.
The appellant was an adult woman whose only disability at the time she was turned out of the Club was the state of intoxication she had induced in herself. There was a thinly veiled suggestion that, because it seemed that the appellant's companions may have had sexual designs upon her, they were "unsafe" companions with whom to allow her to leave the Club. But what business would the Club have had to attempt to look after the moral wellbeing of the appellant?
It was suggested that the Club should have called the police17. But again it must be asked: to do what? If the police had been called they would have been bound (by s 67A of the Registered Clubs Act) to turn the appellant out of the Club's premises. But what else is it suggested that the police might have done? No satisfactory answer was given to this question. All that was said was that it could not be supposed that the police would have left her to fend for herself. That assumes that the appellant would have reacted differently to a suggestion that she take the courtesy bus or a taxi – differently, that is, from her crudely blunt response to the Club's manager.
Again, even if there were some duty to take reasonable care not to allow her to leave the premises except by a safe means of transport, the Club did not breach that duty. It took reasonable steps to make safe transport available to her.
Questions of duty of care not decided
In these circumstances it is neither necessary nor appropriate to decide any question about the existence of a duty of care. It is not necessary to do so for the reasons given earlier. It is not appropriate to do so because any duty identified would necessarily be articulated in a form divorced from facts said to enliven it. And, as the present case demonstrates, the articulation of a duty of care at a high level of abstraction either presents more questions than it answers, or is apt to mislead.
Here, as in so many other areas of the law of negligence, it is necessary to keep well in mind that the critical question is whether the negligence of the defendant was a cause of the plaintiff's injuries. The duty that must be found to have been broken is a duty to take reasonable care to avoid what did happen, not to avoid "damage" in some abstract and unformed sense. Thus asking whether it is careless to sell liquor to an obviously intoxicated patron may, when the question is cast in that abstract form, appear to invite an affirmative answer. And giving an affirmative answer may be thought to conduce to the careful and responsible service of a product which, if misused, can be dangerous. But as the events which give rise to this appellant's claim demonstrate, the simplicity of a question framed in the way described serves only to obscure the complexity of the problems that lie beneath it.
The appeal should be dismissed with costs.
KIRBY J. A problem with the consumption of alcohol, persisted with beyond small quantities, is that it has a capacity to destroy the ability of the consumer to make reasoned choices, to observe proper self-protection and to behave in a civil and rational way.
These facts are generally known to supplier and consumer alike. However, the consumer may be a person highly vulnerable to alcohol-induced conduct that is harmful and self-destructive. What for most members of the community is, if taken in prudent quantities, an enjoyable and relaxing pastime is for a small minority of consumers a highly dangerous and potentially lethal poison. Even for those who do not fall into the category of highly vulnerable people, alcohol, of its nature, has the capacity to affect adversely people with full faculties, when it is consumed to excess. Vulnerable people are not only those who drink to excess. Alcohol adversely affects many people in different ways.
A rational system of law will recognise these differentials. It will not allow suppliers, who have a commercial interest in supplying alcohol to consumers, to wash their hands of legal responsibility for the safety of those to whom the alcohol they supply becomes the cause of serious injuries. That is what the appellant alleges happened in her case.
Conclusions at trial and on appeal
The primary judge in the Supreme Court of New South Wales (Hulme J)18 approached the contest between Mrs Cole (the appellant) and the respondent Club ("the Club") with the foregoing realities in mind. He found that the Club, with relevant statutory duties and with economic and physical control over the supply of alcohol to patrons on its premises, owed the appellant a duty of care in accordance with the common law of negligence. He concluded that the Club had breached its duty of care and was partially the cause of the serious injuries suffered by the appellant. Those injuries were a result of the appellant's disorientation on a public road 100 metres from the Club's premises soon after she had left those premises in a serious state of intoxication.
On the evidence proved in this case, the primary judge was entitled to reach the conclusions of fact and law that he did. The Court of Appeal was not warranted to disturb the judgment which the appellant recovered against the Club. This Court is not concerned with the issue of the liability of the driver of the motor vehicle that struck the appellant. However, the judgment at trial in favour of the appellant against the Club should be restored.
The Club owed the appellant a duty of care
Two central problems were said to stand in the way of recovery by the appellant. The first was the suggested absence of a duty of care owed in law to a person in the position of the appellant to ensure that she did not become so seriously intoxicated that she might be confronted with the foreseeable risks of the kind that befell her and, if she did become so intoxicated, to ensure that she was taken home or to some other safe place where she could recover further from the alcohol-induced intoxication before venturing beyond the Club's premises to circumstances potentially of great danger.
The reasons of Gummow and Hayne JJ ("the joint reasons") prefer to postpone resolution of the issue of the duty of care although hinting at difficulties which their Honours see in its availability19. The reasons of Gleeson CJ20 and Callinan J21 deny the existence of a duty of care. Their Honours' reasons are, with respect, replete with expressions reflecting notions of free will, individual choice and responsibility22. This is reinforced in the reasons of Callinan J by his Honour's references to the opinion of Heydon JA in the Court of Appeal from which the appeal comes23. Whatever difficulties free-will assumptions pose for the law in normal circumstances24, such assumptions are dubious, need modification and may ultimately be invalidated having regard to the particular product which the Club sold or supplied to patrons such as the appellant, namely alcoholic drinks. The effect of that product can be to impair, and eventually to destroy, any such free will. This fact imposes clear responsibilities upon those who sell or supply the product in circumstances like the present to moderate the quantity of the supply; to supervise the persistent sale or supply to those affected; and to respond to, and ameliorate, the consequences of such sale or supply where it is clear that the recipient has consumed enough of the product to be in a temporary state of inability to take proper care for his or her own safety. On the findings of the primary judge, such was the case of the appellant.
The law of tort exists not only to provide remedies for injured persons where that is fair and reasonable and consonant with legal principle. It also exists to set standards in society, to regulate wholly self-interested conduct and, so far as the law of negligence is concerned, to require the individual to act carefully in relation to a person who, in law, is a neighbour. The Club had a commercial interest to supply alcohol to its members and their guests, including the appellant. Doing so tended to attract them to an early morning breakfast, to induce them to use profitable gambling facilities in the Club's premises and to encourage them to use the restaurant and other outlets where alcohol would continue to be purchased or supplied to the profit of the Club. As McHugh J points out in his reasons, with which I agree, the common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises. That duty arises from the occupation of premises. It extends to protection from injury from all of the activities on the premises, including, in registered premises such as the Club's, the sale of alcoholic drinks.
A breach of duty contributed to the appellant's damage
That leaves the issues of breach and causation. Once the duty of care is accepted, the breach of duty is clearly established because the Club had the right to control the conduct of the appellant on the Club's premises. This included in the supply of alcoholic drinks for her consumption, the termination of such supply and her ejection from the Club premises long before it became highly dangerous to do so34. The Club breached its duty long before any issue of causation arose to be decided35. The real possibility that the appellant would suffer injury, as she did, was clearly foreseeable in the circumstances.
Causation is the substantial issue in this appeal. Its resolution ultimately reduces to the question of whether the Club did enough by offering the appellant transport home in a "courtesy bus" or taxi at about 6.00pm on the day of her injuries. Relevant to the decision on this issue is the intervention of two male New Zealander companions of the appellant who said they would "look after her". Was this sufficient? Did it sever the link between, on the one hand, the duty of care and the breach of that duty found by the trial judge and, on the other, his Honour's conclusion that the acts and omissions of the Club were partly the cause of the damage suffered by the appellant soon after she left the Club's premises?
I accept that the situation of the appellant at about 6.00pm on the day of her injuries presented the Club and its secretary/manager with a difficult situation. It was, however, one partly, even substantially, of their own making. What they were to do was governed by the circumstances then arising. Those circumstances included the very prolonged course of supply of alcohol to the appellant, one way or another, on the Club's premises following the spumante breakfast. The obvious state of intoxication of the appellant over a long interval and the profound effect this had on the appellant's intellectual and motor capacity – as well as the obvious risks she faced if she were left to her own devices on or near a public highway on leaving the Club's premises – made the possibility of an accident reasonably foreseeable in the circumstances of her condition.
By 5.30pm or 6.00pm on the day of the accident the secretary/manager of the Club saw the appellant in a condition which was described as "grossly intoxicated". At around 3pm, Mrs Pringle, wife of the secretary/manager, had refused to serve her and described her as unsteady on her feet. At 2.15pm to 2.30pm, the appellant's friend Mrs Hughes had described her as "totally inebriated" and "an embarrassment". This was not, therefore, a case of chance or unexpected intoxication at a late hour. It was an instance of prolonged and obvious drunkenness on the Club's premises over an extended period.
"Alcohol exerts its major effects on the structures of the brain which are responsible for balance and co-ordination. Alcohol also affects mental and cognitive ability (ie judgement, reasoning, memory). Alcohol reduces peripheral awareness as well as impairing speed and distance judgements. The ability to successfully divide attention between two or more inputs is significantly degraded at blood alcohol concentrations as low as 0.05g/100ml and impairment increases exponentially with rising blood alcohol concentration. Glare resistance is also reduced under alcohol and perspective is distorted. In many collisions involving alcohol-intoxicated pedestrians, although the pedestrian has been shown to have detected the presence of an oncoming vehicle, she has continued to cross the road. This has usually been attributed to an alcohol-induced increase of the time-intervals between detection, decision and action. Another feature common to many such collisions is an increase in uncertainty on the part of the intoxicated pedestrian. Often, the pedestrian realises her miscalculation and stops or hesitates just before the impact. If an avoidance strategy is decided upon, then the intoxicated pedestrian experiences other difficulties, in terms of decreased agility and lack of co-ordination. These deficits taken together with increased perception and reaction times, substantially reduce the chances of successfully avoiding an impact."
The proper operation of the law of tort
Either this Court accepts that the law imposes a duty of care on those in effective control in such circumstances (the Club and its employees) or it transfers responsibility solely to a person whose capacity to exercise responsibility had been repeatedly and seriously diminished over a very long time by the type of conditions that existed in the Club's premises, as described in the evidence. If responsibility – even partial – is imposed on the Club by the law of negligence a message is sent that control is not just a formal duty imposed on the Club and its officers by Parliament and by statutory offences unlikely to be prosecuted often. A holding of liability in negligence would reinforce such duties36 by visiting civil consequences that would sound in direct liability to the injured, with a resulting increase in insurance premiums that might stimulate a desirable change of culture and conduct. The Club's eventual response to the appellant's conduct can be seen for what it was: an instance of too little, too late. By their decision, the majority of this Court tolerate and perpetuate this state of affairs. I dissent from their view. It is not the concept of the law of tort that I hold.
Some Australians find such drunkenness amusing and socially tolerable. Sometimes, in certain environments and some degrees, it may be so. But the picture portrayed in the case of the appellant's behaviour at the Club's premises is of a human being who eventually became profoundly affected by alcohol over an extremely long period, actually ill, and was effectively turned out of the Club's premises drunk, on the flimsy possibility that new-found male companions would "look after" her. Unsurprisingly, given her condition, they did not do so. Soon after, she was wandering onto the highway where she was struck by a motor vehicle and seriously injured. This consequence was readily foreseeable if not inevitable. Certainly, it was one of a number of serious risks that it was open to the primary judge to conclude were reasonably foreseeable in the circumstances.
For those in the Club's premises who had a large (certainly the primary and also the statutory) responsibility for her state, what was offered was not enough. It was proposed far too late. The common law required more. The trial judge was right to so hold. The rejection of this appeal will reinforce indifference and belated and formal offers of transport by a club where proper standards of reasonable care require a significantly more prompt and higher standard of attention to the case of such a vulnerable individual. Until that higher standard is imposed by the law, including the common law of negligence, purveyors of alcoholic liquor will continue to gather significant profits with no substantial economic contribution to the occasional victims who are injured as a result, such as the appellant.
As a matter of principle, the result in this appeal is contrary to my view of the operation of the Australian common law of negligence. The case joins an increasing number of decisions where judgments of negligence in favour of plaintiffs at trial are taken away not by statutory deprivation but by appellate courts endorsed by this Court, despite the advantages the trial judge has in evaluating all of the evidence relevant to the multifunctional assessment of the existence of a duty of care and to the commonsense assessment of whether breach of that duty caused the plaintiff's damage.
"Q. And you didn't think to ask the lady to remain until perhaps she became more composed?
A. After the confrontation, I was involved in other duties and didn't really take notice again until after.
Q. You were just anxious to get her off the premises?
A. Basically, yes."
Conclusions and orders
The majority of this Court disagrees with my conclusion. However, in my opinion the expressed attitude of the Club's secretary/manager and the conduct and "blind eyes" of the other employees of the Club did not reach the standards of the common law. The Club was not a kindergarten. But it was not a place for substantial indifference to a person who became steadily, obviously and seriously intoxicated. Statute imposed, or implied, relevant duties on those in charge of the Club and its premises. And so did the common law. It was open to the primary judge to so conclude. The Court of Appeal erred in interfering in the judgment in favour of the appellant against the Club based on the trial judge's assessment.
The appeal should be allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales in pars (a), (d) and (e) should be set aside to the necessary extent. In place thereof, it should be ordered that the appeal against the judgment entered at trial against the respondent South Tweed Heads Rugby League Football Club Ltd be dismissed with costs.
CALLINAN J. Mrs Cole, the appellant, had worked in a buffet car on the railways, as a waitress in a restaurant on South Molle Island, in a nightclub for two periods, and at a tavern as a function manager at the Gold Coast. She was 45 years old at the time of the events with which this Court is concerned. It is inconceivable that by then, in 1994, she had not had ample opportunity to observe and come to understand the universal effects of the consumption of alcohol.
The appellant systematically and deliberately drank herself into a state of intoxication at or in the vicinity of the licensed premises of the first respondent ("the respondent"), starting at about 9.30am and continuing throughout the day of 26 June 1994. It is far from clear how much of the liquor that she drank during that day was supplied to her by the respondent.
The appellant spent some of the day at the premises talking to, and drinking with friends. For part of the time she played gambling games. Unsurprisingly, she could not account for her movements and activities at other times although she remembers, as the primary judge found, that "she had a very good time"39. Equally unsurprisingly, by one-thirty in the afternoon the appellant was manifesting to some people signs of her inebriation. Her friend Mrs Hughes said that as early as midday the appellant was drunk, carrying on and arguing, and her speech was "a bit funny". Mr Pringle, the manager of the respondent spoke to the appellant at about 5.30pm. He saw a bottle of wine on the table where she was seated and later described her as then being "very, very drunk". He thought that she was being held up by someone else. He said to her "You are affected by alcohol, I won't tolerate your behaviour, you will have to leave". Because Mr Pringle thought the appellant needed help to reach her home safely, he offered her the use of the club's courtesy bus and driver. The alternative of a taxi was offered, which again was a service provided by the respondent from time to time. The appellant's response to both offers was, as Mr Pringle recalled, "Get f.....". Mr Pringle told the appellant that he would not tolerate her behaviour. One of two Maori men who were then in the appellant's company told Mr Pringle to "leave it with [them] and [that he would] look after her". Within a matter of minutes the Maori men and the appellant left. Mr Pringle had already told the men in the group that because of their behaviour, they would not be served again. They did not however appear to him to be drunk.
"Thus, despite the almost unbelievable stupidity (at least for a sober person) of continuing to walk towards, or stand in the way of, a lighted oncoming car at night, it seems to me that the probabilities are that that is what the [appellant] did. Of course, it may be that it was a case of her just not moving off the carriage way in time and for enough time for the car to pass."
His Honour found both Mrs Lawrence and the respondent to be negligent. His conclusion in relation to the respondent was as follows42:
"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."
The primary judge apportioned liability for the appellant's injuries, as to the appellant herself 40 percent, and as to Mrs Lawrence and the respondent, 30 percent each43.
Both Mrs Lawrence and the respondent successfully appealed to the Court of Appeal of New South Wales44 (Heydon and Santow JJA and Ipp AJA) and in consequence, the appellant's action was dismissed with costs. As will appear, I agree with the decision of the Court of Appeal which I regard as an inevitable one.
The Court of Appeal held that when the appellant purchased a bottle of wine from the respondent at 12.30pm her state of intoxication would not have been known to the respondent's employees. Likewise, the evidence was not capable of establishing on the balance of probabilities that, after 12.30pm, the appellant bought alcohol from the respondent or that it supplied alcohol to her. The source of alcohol she acquired during the afternoon is a matter of speculation. Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess. The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law. The respondent owed the appellant only the ordinary general duty of care owed by an occupier to a lawful entrant. Heydon JA, with Santow JA agreeing held that to extend the duty to the protection of patrons from self-induced harm caused by intoxication would subvert many other principles of law and statute which strike a balance between rights and obligations, and duties and freedoms45.
The appeal to this Court
"that the Court of Appeal erred in holding that the first respondent's offer of safe transport to the appellant whilst intoxicated discharged any duty that the first respondent might have had to take reasonable steps for the appellant's safety."
It is convenient to deal with it immediately.
The appellant submits that the respondent was under a duty, either to attempt "to achieve a sobering up of the appellant and/or the actual sobering up of the appellant ... [i]n effect, facilitating the regaining of composure by the appellant." It was said that:
"Mr Pringle decided to avoid further confrontation rather than assist or facilitate the appellant regaining some composure. Assisting or facilitating the regaining of composure would have materially affected the appellant's ability to get home safely. It could have been achieved with a relative minimum of effort: ceasing service of alcohol, preventing consumption of alcohol, supplying non-alcoholic drinks and beverages and when some composure has been regained or some sobriety obtained, again offering transport to the appellant when she was not in a state where she had lost complete control and when a more reasoned and rational response was probable. Mr Pringle knew that the appellant's rudeness and rejection of his suggestion was similar to the conduct of 'most drunks' to 'get upset when you turn the grog off' and common experience informs that grossly intoxicated persons can be troublesome, disinhibited and non-compliant when compared to sober persons acting rationally."
Let me assume, contrary to what I would hold to be the case, that the respondent owed a duty of care of the kind suggested, to the appellant before and at about the time that she left its premises. There was no breach of such a duty. The notion that the appellant, as far gone and as offensively abusive as she was, would have been amenable to counselling, or simple restraint, or indeed to any measures intended to restore her composure, is fanciful. Forceful restraint was out of the question. No sensible person would ever remotely contemplate such a course, capable, as it would be, of leading to a physical altercation, an assault, and the possibility of criminal and civil proceedings in relation to it. The same consequences could equally flow from any attempt to induce the appellant to regain her sobriety in a room or other quiet place at the respondent's premises. As for the suggestion made in oral argument, that a police officer could and should have been called, these responses should be made. It is highly improbable that a heavily pressed police force would have had, or would have been likely if it did have them, to provide, sufficient personnel to enable a police officer or officers to make a timely and effective visit to the premises. And in the unlikely event that a police officer did make a timely call at the premises, it is equally unlikely that his or her official duty could have been discharged otherwise than by doing what the respondent itself did, that is, "turn [the appellant] out … of the premises of the club"46. There is another complete answer to this ground of appeal. It is that the appellant when she left did so voluntarily and apparently with a group of men. The men said that they would look after her. In those circumstances there was nothing that the respondent could do. There is no obligation upon anyone to engage in a futility.
Even assuming a relevant duty of care the respondent would have fully discharged it by doing what it did, offering the appellant the use of a courtesy bus, or a taxi.
Reference was made in argument by the appellant to s 44A of the Registered Clubs Act 1976 (NSW) which was as follows at the relevant time47:
"Conduct on club premises
44A (1) A secretary of a registered club who:
(a) permits intoxication on the club premises; or
(b) permits any indecent, violent or quarrelsome conduct on the club premises,
is guilty of an offence.
Maximum penalty: 20 penalty units.
(2) A person who, in a registered club, sells or supplies liquor to an intoxicated person is guilty of an offence.
Maximum penalty: 20 penalty units.
(3) If a person on the premises of a registered club is intoxicated, the secretary is taken to have permitted intoxication on the premises unless it is proved that the secretary and all employees selling or supplying liquor took all reasonable steps to prevent intoxication on the premises."
Although that section provides some indication of the nature of the responsibilities of clubs it was not suggested that it gave rise to any statutory causes of action. In any event, the respondent probably complied with the section by taking the step of asking the appellant to leave the premises. The evidence, even as to whether the respondent did permit the appellant to be intoxicated on the premises, certainly after 12.30pm, was to say the least obscure. The section does not assist the appellant in this case.
What I have so far said is sufficient to dispose of the appeal. Nonetheless I would wish to endorse fully and explicitly some of the propositions stated in the judgments of the Court of Appeal. I think this desirable not only because those propositions are correct, but also because the statement of them achieves a high degree of certainty with respect to the duty to customers of vendors of alcoholic liquors, the matter which excited the interest of the Court on the application for special leave.
I agree with these pronouncements by Heydon JA48:
"Ipp A-JA has identified several factors pointing decisively against the recognition of a duty of care owed by publicans not to serve customers whom they know will become or have become intoxicated in order to prevent the customers causing injury to themselves.
Underlying those factors are two matters of particular significance both for potential plaintiffs and for potential defendants.
One is that if the duty existed it might call for constant surveillance and investigation by publicans of the condition of customers. That process of surveillance and investigation might require publicans to direct occasional oral inquiries to customers. Inquiries of this kind would ordinarily be regarded as impertinent and invasive of privacy. Quite apart from the inflammatory effect of these activities on publican-customer relations and on good order in the hotel or club, the impact of these activities on the efficient operation of the businesses of publicans would 'contravene their freedom of action in a gross manner'.
The other significant matter is that if a customer reached a state of intoxication requiring that no further alcohol be served and the customer decided to depart, recognition of the duty of care in question might oblige publicans to restrain customers from departing until some guarantee of their safety after departure existed. The [appellant's] arguments in this case repeatedly stressed the proposition that the club was at fault in permitting the [appellant] to leave without ensuring that it was safe for her to do so. How are customers to be lawfully restrained? If customers are restrained by a threat of force, prima facie the torts of false imprisonment and of assault will have been committed. If actual force is used to restrain customers, prima facie the tort of battery will have been committed as well as the tort of false imprisonment. Further, the use of actual force can be a criminal offence: Crimes Act 1900, s 59 and s 61. It is a defence to these torts to prove lawful justification – reasonable and probable cause. However, the constitutional significance of the torts in question in protecting the liberties of citizens – they create, after all, important limitations on police power – means that 'lawful justifications' should not lightly be found independently of legislative sanction even outside the immediate police context. Subsections (1) and (3) of s 67A(1) of the Registered Clubs Act 1976 make it lawful for the secretary or an employee of a registered club to use whatever reasonable force is necessary to 'turn out' of a club intoxicated persons. But the legislation says nothing about using reasonable force to keep intoxicated persons in pending the appearance of some guarantee for their safety after departure. In short, if the tort of negligence were extended as far as the [appellant] submitted, it would 'subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms'."
I am also of the opinion that in general – there may be some exceptional cases – vendors of products containing alcohol will not be liable in tort for the consequences of the voluntary excessive consumption of those products by the persons to whom the former have sold them. The risk begins when the first drink is taken and progressively increases with each further one. Everyone knows at the outset that if the consumption continues, a stage will be reached at which judgment and capacity to care for oneself will be impaired, and even ultimately destroyed entirely for at least a period.
It follows that I would disagree with any propositions to the contrary deducible from the Canadian cases referred to in argument: Stewart v Pettie49 and Jordan House Ltd v Menow50.
The appeal should be dismissed with costs.
It is convenient to refer to the first respondent as "the respondent". The second respondent took no part in the present appeal. ↩
cf Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 262-263 [13]-[16]. ↩
(1985) 157 CLR 424 at 487. ↩
(1980) 146 CLR 64 at 71. ↩
(2001) 207 CLR 562 at 581 [55]. ↩
[2000] 1 AC 360 at 379-380. ↩
cf Desmond v Cullen (2001) 34 MVR 186 at 187. It is to be noted that the Canadian case Jordan House Ltd v Menow [1974] SCR 239 involved knowledge of the plaintiff's propensities, and placing him in a situation of known danger. ↩
Or, in cases where the plaintiff sues in respect of injury to a third person – such as cases under Lord Campbell's Act, or in actions for nervous shock or per quod servitium amisit – the third person. ↩
A "standard drink" was defined as a drink delivering 10 gm of alcohol: 285 ml of full strength beer, 30 ml of spirits or 120 ml of table wine. ↩
Cole v Lawrence (2001) 33 MVR 159. ↩
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113. ↩
Cole
Sth Tweed Heads Rugby Club [2004] HCA 29; 217 CLR 469; 207 ALR 52; 78 ALJR 933
(2000) 205 CLR 254
(1985) 157 CLR 424
(1980) 146 CLR 64
(2001) 207 CLR 562
(2001) 34 MVR 186
(2001) 33 MVR 159
(2002) 55 NSWLR 113
(2002) 211 CLR 540
(1997) 27 MVR 110
(1988) 20 FCR 91
Appeal dismissed with costs. The Court of Appeal’s judgment in favour of the Club remained in place.
Those two allegations of negligence involve disputed assumptions about the nature and extent of the duty of care which the respondent owed to the appellant. Before turning to those assumptions, however, it is important to relate the allegations to the evidence, and the findings of fact, in the case. The allegations are stated at a certain level of generality, and can only be understood sufficiently if made more concrete. It is to be noted that they involve failure to restrain or prevent the appellant from engaging in voluntary behaviour. The appellant's written submissions, filed in advance of oral argument, complained that the respondent permitted the appellant to continue to drink. In oral argument the emphasis was on supplying her with drink, but the supply was in response to her request. The second complaint was of allowing the appellant to leave the respondent's premises in a certain condition. When acts of negligence are said to consist of permitting, or allowing, an adult person to act in a manner of her choosing, even if her judgment is affected by drink, then there is a need for careful attention to the supposed duty, which must be a duty to prevent her from acting in accordance with her intentions.
The appellant was a healthy woman of mature age. She did not suffer from any physical or mental disability. The evidence did not suggest that she was an alcoholic; much less that she was known to be such by the respondent. The trial judge, Hulme J, found that the appellant, "voluntarily and in full possession of her faculties, embarked on a drinking spree". The appellant's evidence was that, at a time shortly before the respondent refused to serve her further drink, which was about two hours after the respondent last sold her drink, she was "possibly intoxicated", and "talking to people, having fun".
The first allegation of negligence was narrowed somewhat in the course of argument. It began as a complaint about permitting the appellant to drink on the respondent's premises, and later took the form of a complaint about supplying her with drink. The difference is not unimportant. The club premises were near a football ground. People, including the appellant, moved during the course of the day between the club premises and the playing or watching areas. The respondent was not the only source of supply of drink in the vicinity, and the appellant could well have had access to drink in addition to that which the club's employees supplied directly to her. She certainly had access to drink that had been supplied originally to her friend, Mrs Hughes. The trial judge found that the respondent was negligent in supplying the appellant with a bottle of wine at about 12.30 pm. The fact of that supply was not disputed, although the circumstances were contentious. He also found that there was a later supply of a bottle of wine by the respondent to the appellant, and that such supply also was an act of negligence. That second finding of supply was overturned by the Court of Appeal. What is to be noted, however, is that the trial judge's findings of negligence were based on supplying wine to the appellant, not upon some general permission to her to drink on the respondent's premises.
As to the facts relating to supply to the appellant, the following should be noted. The appellant commenced drinking at about 9.30 or 10 am. It seems clear that she continued to drink throughout most of the day. Hulme J found that the appellant purchased a bottle of wine shortly before 12.30 pm. He also found that, at that time, it should have been apparent to employees of the respondent that she was intoxicated. The Court of Appeal reversed that finding. The Court of Appeal also concluded that, although the appellant continued to drink during the afternoon, there was no evidence to support any finding that she was served alcohol by the respondent after 12.30 pm. No successful challenge has been made to the reasoning of the Court of Appeal on those matters of fact. There was evidence as to the appellant's condition at about 2.20 pm, when she told Mrs Hughes that she would not accompany her home, but would stay on at the club. According to Mrs Hughes, the appellant was "very joyous and happy", "an embarrassment" and "totally inebriated", but capable of directing a taxi driver where to take Mrs Hughes, and of making clear her decision to remain at the club with some new-found friends. Between 12.30 pm and 2.20 pm, the appellant had the opportunity to consume a substantial quantity of wine. It is not clear how much, if any, of the bottle she bought at 12.30 pm she drank herself. She shared with Mrs Hughes during the day, but her evidence was that, just as there were times when she was giving some of her wine to Mrs Hughes, so also Mrs Hughes was giving some of her wine to the appellant. The evidence is consistent with the appellant having consumed at least a bottle of wine, and perhaps more, between 12.30 pm and 2.20 pm. That is of significance if one seeks to draw an inference as to her condition at 12.30 pm from the evidence as to her condition at 2.20 pm.
At about 3 pm, the wife of the manager of the respondent's club refused to serve the appellant because of her state of intoxication. Thus, on the facts as found by the Court of Appeal, there was no evidence of any supply of alcohol by the respondent to the appellant after 12.30 pm; the evidence did not support a finding that, at the time of that supply, it should have been apparent that the appellant was then intoxicated; thereafter the appellant consumed at least a bottle of wine; she had access to drink in addition to that which the respondent supplied her; and at 3 pm, when next she sought to purchase alcohol from the respondent, she was refused supply.
The harm suffered by the appellant was personal injury resulting from her careless behaviour as a pedestrian, the carelessness being attributable to her state of intoxication at 6.20 pm. The argument for the appellant must involve two steps: first, that the respondent, as a supplier of alcohol, owed her a duty to take reasonable care to protect her against the risk of physical injury resulting from her careless behaviour in consequence of her excessive consumption of alcohol; and secondly, that in the circumstances the conduct of the respondent, through its employees, amounted to a failure to take such care. The Court of Appeal rejected both of those contentions.
It is unnecessary, for the purposes of the present case, to endeavour to formulate, in abstract terms, some general proposition as to whether in any, and if so what, circumstances a supplier of alcohol, in either a commercial or a social setting, is under a duty to take reasonable care to protect a consumer of alcohol against the risk of physical injury resulting from consumption of alcohol. The question is whether there was such a duty in the circumstances of this case. The practical consequences of such a duty are worth noting.
Intoxication is an imprecise concept, but the laws concerning drink driving reflect the fact that a person in charge of a motor vehicle may be at risk of suffering, or causing, injury after three or four standard drinks. That is probably the best known and most clearly foreseeable risk of injury that accompanies the consumption of alcohol. The risk does not necessarily involve a high level of intoxication. There are other forms of risk of physical injury which may accompany the consumption of alcohol, even in relatively moderate amounts. Consistently with the appellant's argument, if she had gone home in the early afternoon, tripped on a doorstep, and suffered a broken wrist, she may have had a cause of action against the respondent.
In R v O'Connor4, a case concerning the effect of intoxication upon criminal responsibility, Barwick CJ said:
Again, as a general rule a person has no legal duty to rescue another. How is this to be reconciled with a proposition that the respondent had a duty to protect the appellant from the consequences of her decision to drink excessively? There are many forms of excessive eating and drinking that involve health risks but, as a rule, we leave it to individuals to decide for themselves how much they eat and drink. There are sound reasons for that, associated with values of autonomy and privacy.
Counsel for the appellant drew attention to a provision in the Registered Clubs Act 1976 (NSW) (s 44A) which makes it an offence to supply liquor to an intoxicated person. This may explain why the appellant was refused service at 3 pm. It was not argued that the appellant had a cause of action based on breach of statutory duty. On the facts found by the Court of Appeal, there was no breach. For other reasons, as well, the provision does not assist the appellant's argument. A person may be at risk of physical injury following the consumption of alcohol even if the person is well short of the state of intoxication contemplated in the provision. As has been noted, the most obvious example of such a risk is that involved in driving a motor vehicle, and the risk becomes real and significant well before a person has reached the state at which a supplier is legally obliged to refuse service. If the argument for the appellant is correct, the legal responsibility of a supplier is more onerous than that imposed by s 44A. Indeed, as a guide to the responsibilities of suppliers, s 44A would be something of a trap.
It is possible that there may be some circumstances in which a supplier of alcohol comes under a duty to take reasonable care to protect a particular person from the risk of physical injury resulting from self-induced intoxication7. However, the appellant cannot succeed in this case unless there is a general duty upon a supplier of alcohol, at least in a commercial setting, to take such care. I do not accept that there is such a general duty. I would add that, if there were, it is difficult to see a basis in legal principle, as distinct from legislative edict, by which it could be confined to commercial supply. When supply of alcohol takes place in a social context, there may be a much greater opportunity for appreciating the risks of injury, for monitoring the condition of the consumer, and for influencing the consumer's behaviour. In a social, as in a commercial, context, the risk of injury associated with the consumption of alcohol is not limited to cases where there is an advanced state of intoxication. Depending upon the circumstances, a guest who has had a few drinks and intends to drive home may be at greater risk than a guest who is highly intoxicated but intends to walk home. If there is a duty of the kind for which the appellant contends, it would be the degree of risk associated with the consumption of alcohol, rather than the degree of intoxication, that would be significant. In many cases the two would go together, but in some cases they would not.
The consequences of the appellant's argument as to duty of care involve both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice. The argument should be rejected.
Even if there were a duty on the respondent to take reasonable care to protect the appellant from the risk of physical injury resulting from careless behaviour in consequence of excessive consumption of alcohol, the evidence does not establish failure to take reasonable care.
At the level of breach, as at the level of duty, it is material to consider that the appellant was a healthy, mature woman who, for her personal enjoyment, decided to embark upon a drinking spree.
The Court of Appeal concluded that reasonableness did not require any more of the respondent, by way of care for the safety of the appellant, than was actually done. Two aspects of the conduct of the parties are of particular significance. First, the Court of Appeal found that there was no supply of alcohol by the respondent to the appellant at any time after 12.30 pm, some six hours before her injury, and that at that time there was no reason for the employee who supplied the bottle of wine to regard the appellant as significantly intoxicated. The next time the appellant sought supply from the respondent, at 3 pm, she was refused. There was no further supply to the appellant by the respondent.
At about 5.30 pm, the appellant's disorderly behaviour drew attention. She was in the company of two men, who themselves were apparently sober. The manager of the respondent's club asked her to leave the premises. He offered to provide her a courtesy bus to drive her home. Alternatively, he said that, if she preferred it, he would call for a taxi to take her home. She refused both offers in blunt and abusive terms. One of her male companions told the manager to "leave it with us and we'll look after her". A few minutes later the appellant and the men left.
The appellant is not complaining of damage to her liver from drinking too much. The harm she suffered was the direct and immediate consequence of her own careless behaviour as a pedestrian, about half an hour after she left the club. There is no evidence as to how she spent that half-hour. On the evidence, the club refused to sell her drink the first time she asked for it in a significantly intoxicated condition. It did not sell her any drink after that. When she was asked to leave the premises, the club offered to provide free transport home or, alternatively, to obtain a taxi to take her home. She declined those offers. Two reasonably sober male companions then said they would look after her, and she left.
There is no reason to disturb the Court of Appeal's finding that the respondent took reasonable care to protect the appellant from the risk of injury that ultimately occurred. That the offers of a courtesy bus and a taxi were part of the club's procedures no doubt reflects the fact that the most obvious risk to someone who has consumed excessive amounts of alcohol is the risk associated with drink driving. It was a standard procedure for the club, even in the case of people who might have had much less to drink than the appellant. It was a useful and sensible facility for customers. The appellant's rejection of the manager's offers might have reflected the fact that her judgment was affected by drink. It might have reflected her enjoyment of the company that was available to her. It could simply have been the result of resentment at being asked to leave. There is no way of knowing. Whatever the reason for the rejection of the offers, they were made in good faith, and if they had been accepted it is unlikely that, half an hour later, the appellant would have been walking on the roadway. Furthermore, the respondent had no reason to doubt the genuineness of the intention of the two men to look after the appellant, or their capacity to do so.
As to causation, the appellant's condition of intoxication was never so extreme that she was not legally responsible for her actions. The respondent did not eject her from the club onto the roadway. She refused an offer to be driven home. What then went on between the time she left the club and the time she was run down by the car is not known. Her rejection of the offer of transport to take her home would be material if an issue of causation had arisen. For the reasons already given, no such issue arises.
The appeal should be dismissed with costs.
McHUGH J. The question in this appeal is whether a licensed club is legally responsible for the injuries sustained by a customer when she was struck by a motor vehicle shortly after leaving the club after spending most of the day drinking in the club and becoming highly intoxicated.
In my opinion the club is legally responsible for the injuries suffered by the customer. The facts of the case are set out in other judgments. I need not repeat them. Because my view of the case is a dissenting one, I can state my conclusions summarily by reference to basic principle and without the necessity to embellish the judgment with an extensive discussion of case law.
Basic principle in the law of negligence holds that a defendant is liable in negligence only when the defendant owed a duty of care to the plaintiff8, breached that duty, and, as a result, caused injury to the plaintiff of a kind that was reasonably foreseeable. If the defendant owed a duty of care to the plaintiff, breach of duty is determined by considering whether an act or omission of the defendant gave rise to a risk of injury to the plaintiff that, by the exercise of reasonable care, could have been foreseen and avoided. In determining the breach issue, what the defendant knew or ought to have known is critical. If the duty has been breached, the defendant will be responsible for any injury suffered by the plaintiff that, as a matter of common sense, is causally connected with the breach and is of a kind that was a reasonably foreseeable consequence of the breach.
The common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises. That duty arises from the occupation of premises. Occupation carries with it a right of control over the premises and those who enter them. Unless an entrant has a proprietary right to be on the premises, the occupier can turn out or exclude any entrant – even an entrant who enters under a contractual right. Breach of such a contract will give an entrant a right to damages but not a right to stay on the premises.
The duty of an occupier is not confined to protecting entrants against injury from static defects in the premises. It extends to the protection of injury from all the activities on the premises. Hence, a licensed club's duty to its members and customers is not confined to taking reasonable care to protect them from injury arising out of the use of the premises and facilities of the club. It extends to protecting them from injury from activities carried on at the club including the sale or supply of food and beverages. In principle, the duty to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages. It must extend to injury that is causally connected to ingesting beverages as well as to internal injury that is the result of deleterious material, carelessly added to the beverages.
If the supply of intoxicating alcohol by a club to a customer gave rise to a reasonable possibility that the customer would suffer injury of a kind that a customer who was not under the influence of liquor would be unlikely to suffer, the club is liable for the injury suffered by the customer provided the exercise of reasonable care would have avoided the injury. That statement is subject to the qualification that the injury must be of a kind that was reasonably foreseeable. However, it is not necessary that the club should reasonably foresee the precise injury that the customer suffered or the manner of its infliction. It is enough that the injury and its infliction were reasonably foreseeable in a general way.
Mrs Cole commenced drinking at the Club around 9.30am. No later than lunchtime, signs of her inebriation were plain to anyone who cared to look. A friend of Mrs Cole said that at midday she was drunk and carrying on and arguing and that her speech was "a bit funny". At 3pm, Mrs Cole was so intoxicated that the wife of the Club manager refused to serve her any more liquor. At around 5.30pm, the manager said that she was "very, very drunk". She had to be held up. She was behaving so badly that the manager told her to leave the premises.
Upon these facts, the inference is irresistible that, by early afternoon, liquor supplied by the Club had reduced Mrs Cole to such a physical and mental state that there was a real risk that she would suffer harm of some kind. The inference is also irresistible that the more she drank the more opportunities there were that she would suffer harm and the greater the likelihood that the harm would be serious. If the Club ought to have foreseen that her consumption of alcohol had reached a point that further alcohol might expose her to an alcohol-induced risk of injury, it does not matter whether she purchased the further alcohol she drank or whether her companions purchased the alcohol that she drank. The Club owed her a personal duty not to expose her to the risk of injury and, by directly supplying her, or by permitting her companions to supply her, with further alcohol, the Club breached the personal duty of care that it owed to her. It is not relevant to the breach of duty issue that her conduct in drinking an excessive amount of alcohol brought about her intoxicated condition. That conduct is relevant in assessing whether she was guilty of contributory negligence and, if so, to what extent that contributed to the harm that she suffered. It may also be relevant to the issue of causation. But it has nothing to do with the breach of duty issue. The Club had the right to control the conduct of Mrs Cole and her companions and could enforce that right in various ways including ejecting her and her companions from the Club premises. Like employers, teachers, professional persons, guardians, crowd controllers, security guards, jailers and others who have rights of control over persons, property or situations, the duty owed by clubs to entrants extends to taking affirmative action to prevent harm to those to whom the duty is owed. It may extend from the giving of advice and warnings to the forcible ejection from the premises of one or more of those present.
Upon the evidence, the Club ought to have foreseen by early afternoon at the latest that Mrs Cole's drinking had the effect that she was exposed or becoming exposed to the real possibility of suffering injury and taken action to prevent it. It is not to the point, as the learned judges in the Court of Appeal thought, that this might require the Club to constantly survey the condition of those drinking alcohol on the premises. The need to monitor the conduct of others and to intervene by advice, warning or more drastic action are frequent characteristics of affirmative duties. No one could plausibly deny that, if a club's failure to monitor the conduct of persons on the premises led to a club member sustaining injury, the club would be liable in negligence for its failure. And where, as here, a club has a duty to protect an entrant from injury, it is beside the point that the discharge of its duty may require the club to monitor the conduct including the sobriety of persons on the premises. Not much experience of clubs and hotels is needed to know that, in many – probably most – of them, management is constantly monitoring the conduct and condition of those on the premises. Indeed, many clubs and hotels employ personnel for no other purpose than to monitor and, where necessary, control the conduct of patrons.
Nor is it to the point that alcohol affects persons differently and that it is often very difficult to judge the extent to which a particular person is affected by liquor. Clubs, hotels, restaurants and others are held to the standard of reasonableness, not mathematical precision. It may be an axiom of business management that you can't manage what you can't measure. But in this area of management control, precise measurements are not required. It is not a question of whether the plaintiff had a blood alcohol reading of .11 or .15 or some other figure. It is a question of whether a reasonable licensee, having the opportunity to observe a customer, would think that further drinking by the customer might give rise to a real possibility that the customer would suffer harm.
Nor is any question of the autonomy of Mrs Cole or the management of the Club involved in this case. The autonomy of the management is not involved because the Club, through its management, owed a duty of care to Mrs Cole and that duty extended to taking affirmative action. Questions concerning a defendant's autonomy are relevant in determining whether the defendant owed a duty of care to the plaintiff. But once it is held that a duty is owed – especially when the duty extends to taking affirmative action – the autonomy of the defendant is, to the extent of the duty, curtailed.
Nor does the autonomy of Mrs Cole enter into the issue of breach of duty. It is a central thesis of the common law that a person is legally responsible for his or her choices. The common law regards individuals as autonomous beings who are entitled to make, but are legally responsible for, their own choices. But like all common law doctrines, there are exceptions. One of the most important is that a person will seldom be held legally responsible for a choice if another person owes the first person an affirmative duty of care in relation to the area of choice. An employer does not automatically escape liability for failing to lay down a proper system of work because its employee took it upon himself to do the work in a manner that caused his injury. Particularly where the duty owed extends to protecting the plaintiff, it is unlikely that the voluntary choice of the injured person will preclude a right of action. Such a choice is likely to exclude liability only when it can be said that the choice is the sole cause of the plaintiff's injury. Hence, a club that has breached its duty to protect a member from harm resulting from intoxication cannot automatically escape liability for a member's injury because the member voluntarily consumed the alcohol. If a club member's intoxication causes him or her to fall down a flight of stairs, the club cannot escape liability merely by asserting that the intoxication was self-induced.
Nor does it matter whether several hundred persons were on the Club's premises at various times that day or whether Mrs Cole went out to watch the match that was being played. The Club had a duty to monitor the behaviour and condition of those present. In any event, it had numerous opportunities to observe Mrs Cole's increasingly intoxicated condition. She was at the bar buying wine at 12.20pm and 3pm and sitting at a table inside the Club between 12.20pm and 2.20pm and between 3pm and 5.30pm. Yet, despite the Club's opportunities to observe her condition, it is impossible to resist the inference that the Club took no steps to prevent her drinking, until probably close to 5.30pm when the manager told her to leave. Once the Club through its employees should reasonably have foreseen that the time had come for Mrs Cole to stop drinking if she was to avoid a serious risk of injury, the Club had an affirmative duty to take steps to prevent her drinking. The Club may have discharged its duty by advising or warning her that she had had too much to drink. Or more drastic steps may have been required. If she refused to take advice or a warning to stop drinking, discharge of the Club's duty may have required the Club to remove her from the premises. As long as the Club had acted promptly in removing her from the premises after it ought to have been aware that further drinking might result in her suffering harm, the Club could not be responsible for what happened to her outside the premises. That is because on that hypothesis the Club would not be in breach of its duty. However, the Club did not discharge its duty by refusing to sell her any more liquor at 3pm. Discharge of its duty required the Club to prevent her from drinking more alcohol after the time when it ought to have realised that any further drinking by her could result in her suffering harm.
Once it became apparent that Mrs Cole was so intoxicated that her condition gave rise to a significantly increased risk of harm that she would not be exposed to if she were sober, the Club's failure to prevent her drinking more alcohol constituted a breach of the duty owed to her. It is not necessary in this case, as it might be in other cases of this kind, to specify the precise time when the breach of duty occurred. That is because, on any view of the evidence, the Club permitted her to drink long after it should have taken steps to stop her drinking and because her rising intoxication increased the chance that she would suffer injury of the kind that she did.
Accordingly, sometime in the early afternoon, the Club breached the duty that it owed to Mrs Cole to take reasonable care to protect her from harm. With great respect to those who take the contrary view, it is a mistake to see the question of breach as arising at or about the time Mrs Cole was leaving the premises. What occurred at that stage is relevant to the causation issue but, in the circumstances of this case, it has nothing to do with the breach issue. The Club was in breach of its duty long before Mrs Cole left the premises. If she had fallen over and injured herself as the result of her intoxication at (say) 4pm, she would have had an action against the Club because by then the Club had been in breach of its duty for some time, probably for close to three hours.
Furthermore, unless Mrs Cole's refusal of management's offer of a courtesy bus and driver or, alternatively, a taxi broke the causal chain between the Club's breach of duty and her injury, Mrs Cole must succeed on the causation issue. Her injury was the direct result of the alcohol consumed by her as the result of the Club's breach of duty. Under the common law doctrine of causation, however, the voluntary choice of a plaintiff to take a course of action that leads to injury may destroy the causal link between breach of duty and the injury even though the breach contributed to the injury. But that principle has no application where the voluntary choice of the plaintiff or the intervening act of a third party is the direct result of the defendant's breach of duty. The plaintiff who elects to jump aside to avoid the risk of injury from a negligently driven vehicle is not deprived of a cause of action because no injury would have been suffered if the plaintiff had remained where he or she was.
In the present case, Mrs Cole's abusive rejection of management's transport offers was just the kind of response that might be expected to flow from the Club's breach of duty in permitting her to continue to drink alcohol on the Club's premises. Her refusal of the offers of transport, therefore, no more broke the causal link between the Club's breach of duty and her injury than the voluntary act of the thief breaks the causal chain between a security company's breach of duty and the plaintiff's loss from theft. Nor was the causal chain broken by the offer of Mrs Cole's new-found companions to look after her. Going off with those persons might have founded an intervening cause argument if it had been established that their conduct had contributed to the injuries that she suffered. But there was no such evidence. The fact that she left the premises in their company is therefore not an intervening act that severs the causal connection between the Club's breach of duty and Mrs Cole's injuries.
The most difficult question in the case is that of remoteness of damage. Was it reasonably foreseeable in a general way that, as a result of the Club's breach of duty, Mrs Cole might suffer injury of the kind and in the general way that she did? It is not necessary that the Club should reasonably foresee the precise injury or the manner of its occurrence. The received doctrine is that a defendant, in breach of duty, is liable for injury causally connected to the breach if the injury and the manner of its occurrence were reasonably foreseeable in a general way. Hence, the issue of remoteness has to be determined by asking: was it reasonably foreseeable in a general way that permitting Mrs Cole to continue to drink after the Club should have stopped her drinking might lead to her being struck by a car in the vicinity of the Club's premises up to 50 minutes after she left the Club?
Given Mrs Cole's state of intoxication, it was reasonably foreseeable that that state might result in her suffering injury for up to an hour or even longer after she left the Club premises. Furthermore, injury as a pedestrian was high up on the list of injuries that she was at risk of suffering as the result of her intoxication. Accordingly, given that it is not necessary that either the precise injury or the manner of its infliction should be foreseen, her injury was reasonably foreseeable. It was reasonably foreseeable in a general way that within 50 minutes of leaving the Club she might be struck by a motor vehicle while walking on the road.
The rigorous application of basic negligence doctrine requires the reversal of the Court of Appeal's decision and the restoration of the trial judge's verdict in favour of Mrs Cole. No doubt some minds may instinctively recoil at the idea that the Club should be liable for injuries sustained by a drunken patron who is run down after leaving its premises. But once it is seen that the Club had a legal duty to prevent her drinking herself into a state where she was liable to suffer injury, the case wears a different complexion. The Club has a legal responsibility for the injury. Instinct must give way to the logic of the common law.
All of these questions would have to be answered in deciding what duty of care was owed. None can be answered in isolation. All would require consideration of the purpose for which it is said that the duty alleged is to be imposed.
In this case, the appellant alleged that the collision in which she was injured was caused by the Club negligently continuing to serve her alcohol. Thus, "intoxicated" must refer to some state in which her capacity to care for herself was adversely affected, and the nature of the duty said to be imposed on the Club must be one to take reasonable steps to prevent her reaching that state. But if that is so, it is evident that other considerations must intrude.
Is the content of the duty to be imposed on the Club to vary according to what it knows, or what it should know, about what arrangements the appellant had made (if any) to leave the Club? Or are all patrons to be treated alike, regardless of whether they have made arrangements to be safely taken home? Where, until about midday, the appellant was in a party of four people of whom one did not drink at all, was the Club under a duty to moderate her drinking or not? Could it rely on there being one member of the party who would be responsible for shepherding the party home safely? What steps was the Club expected to take during the afternoon, or after the point it is said that it should have recognised that she was intoxicated? If it should have not supplied her alcohol in the afternoon, it was not shown that the Club did so after the 12.30 pm bottle. If it should have done more than refuse her service, what exactly was to be expected of it?
All of these, and more, questions would have to be answered to identify the duty alleged to exist. And in answering them it would be necessary to pay due regard to the facts that the appellant and others in the Club were adults, none of whom could be expected to be ignorant of the intoxicating effects of the alcohol they voluntarily consumed.
In such circumstances, to hold that the Club owed no duty of care by the standards of the common law of negligence, to patrons such as the appellant, is unrealistic. Such a patron was a person who, in the reasonable contemplation of the Club and its employees, was potentially vulnerable to harm as a result of its commercial activities. Such harm was reasonably foreseeable in the given circumstances. The appellant was within the proximity of the Club in a physical sense. The policy reasons, concerned with free will and personal autonomy, that might in other circumstances justify withholding the imposition of a duty of care are overridden, in the case of the Club, by the commercial interest it had in the presence of the appellant on its premises and the known propensity of the alcoholic product, made available there, to expose at least some individuals to the risk of serious harm.
With all respect to those with doubts or holding contrary views, I therefore have no hesitation in concluding that the Club owed the appellant a duty of care of the kind posited. There is much support for this proposition in Canada: Jordan House Ltd v Menow28 and Stewart v Pettie29. There are many decisions elsewhere that support the general proposition that a person in control of licensed premises owes a duty of care in negligence to take reasonable precautions in the circumstances not to contribute to a danger to others: Chordas v Bryant (Wellington) Pty Ltd30 and Munro v Porthkerry Park Holiday Estates Ltd31. The withered view of community and legal neighbourhood propounded by Gleeson CJ and Callinan J is one that I would reject.
There is no reason for this Court to endorse the narrower legal principle for Australia. There is every reason for it to follow an approach similar to that taken in other jurisdictions32. The social and legal environment in Australia is similar to those countries where the duty has been upheld. This conclusion is also endorsed by the indications of the purposes of Parliament in the statutory provisions regulating control of, and standards in, registered licensed clubs in the State of New South Wales where the appellant's injuries occurred33. Although these provisions do not themselves give rise to a statutory cause of action (and none was alleged) they do shed light on the problems presented because they make plain the purpose of Parliament that intoxicated persons are not to be sold, or supplied with, alcohol on such club premises. Doing so is a criminal offence in proof of which the onus of establishing innocence is exceptionally placed on the club secretary, not the accuser.
Statutory provisions of such a kind can only be explained by Parliament's recognition, and acceptance, of the special risks that selling, supplying or condoning the sale and supply of excessive quantities of alcohol to sometimes vulnerable patrons on such premises occasions to them and to others. The principles of the common law of negligence remain to be expressed in the context of these realistic statutory provisions. They reinforce the conclusion, which commonsense affirms, that the Club owed a duty of care to the appellant as claimed. In the circumstances of this case, they help to overcome the common law's usual reluctance to impose on strangers duties of affirmative action to take care of others. Here the appellant was not a legal stranger to the Club. The Registered Clubs Act 1976 (NSW) imposed duties in respect of her. To the appellant, the Club was, in law, a neighbour.
The Club, a registered purveyor of alcoholic drinks that began the day with a breakfast with the supply of free bottles of spumante in large quantities and thereafter tolerated the continued presence on its premises of a patron who became drunk, and who eventually was obviously drunk (drinking at one stage directly from a bottle of wine and acting in a disordered, sometimes indecent and even offensive manner), cannot say that it owed no duty of care to her. It cannot do so when soon after she left its premises the virtually inevitable motor accident occurred with serious injuries to her person.
There was no error in the conclusion of the primary judge on the duty issue. The Court of Appeal erred in disturbing his conclusion.
It is not adequate to respond with Sunday School horror to the fact that the appellant said to Mr Pringle "get fucked" when he told her, at last, at about 6.00pm, that she would have to leave the premises and offered her transport home. An object of the law applicable to this case, statutory and common law, is to prevent things coming to such a pass. If the appellant had by that hour, indeed much earlier, dropped her "ladylike" behaviour, this was precisely the outcome of serving her with, or permitting the sale or supply to her of, much more alcohol than it was safe for her to consume.
In his report received into evidence, Dr Starmer, an expert pharmacologist, explained features of such alcohol consumption that are largely within common knowledge. He summarised its elements:
By the standards of commonsense the Club, through its secretary/manager and employees who also had important statutory duties to observe, should have taken steps much earlier to prevent sale or supply of more alcohol to the appellant. The Club, the secretary/manager and the employees should have been more strict about it. If necessary, they should have called the police as the applicable legislation contemplates. Doing so would doubtless have put in motion a realistic and enforced procedure for taking the appellant home by transport supplied by the Club. That, in my view, is what the common law required, and should require, of a vendor of alcoholic drinks in circumstances such as these. The appellant was unlikely to have responded to the police as she did to the secretary/manager of the Club. Had she done so, I do not doubt that, at the least, the police would, properly, have taken her in hand, put her off the premises and insisted on her taking the proffered transport home. Clearly, this is what would once have happened in Australia as it happened elsewhere38. I do not see that the law today condones a lesser standard of care in our community for a person rendered substantially dependent on others for her physical safety, even her life, by the commercial operations of those with full lawful charge over the sale and supply of alcohol to vulnerable recipients.
Greater firmness on the part of the Club and its employees in handling the predicament to which the appellant had been brought was essential. Instead, the Club secretary/manager's position was one of weakness, indecision and ultimate inaction. This was conduct substantially in keeping with the sale and tolerated supply of alcohol to the appellant over a long day starting with breakfast and continuing until about 6.00pm. As to suggesting that the appellant remain on the premises until she was fit to travel in a world of fast-moving motor vehicles proceeding in the dark, the secretary/manager was asked:
The appellant must have consumed a very great quantity of alcoholic liquor. All of her consumption was entirely voluntary. Some time after she finished drinking the content of alcohol in her blood was 0.238. The evidence, contrary to the finding of the primary judge, did not establish that the respondent had supplied the appellant with any alcohol after about 12.30pm. In fact Mrs Pringle, who was assisting at the club, had refused to serve her at about 3.00pm.
The appellant's last recollection of events before she was injured was of speaking to the driver of a taxi cab to tell him the address to which her friend should be taken, and of returning to the club to watch a football match in progress on a playing field in front of it. Her next recollection is of waking up in hospital in Brisbane.
A further sighting of the appellant, a very brief one, was made by Mrs Lawrence in the headlights of the motor vehicle that she was driving in a southerly direction along Fraser Drive in the vicinity of the respondent's premises at about 6.20pm in darkness. The appellant was walking towards her on Mrs Lawrence's side of the roadway but near the edge of the bitumen carriageway. The appellant was wearing dark clothing. Mrs Lawrence initially saw only her face. The vehicle struck the appellant. She suffered serious injuries.
The appellant sued Mrs Lawrence and the respondent in the Supreme Court of New South Wales40. The case was heard by Hulme J. In one passage in his judgment he described the appellant's conduct in walking on the roadway in this fashion41:
(2002) 211 CLR 540 at 575‑576 [81]. ↩
(2002) 211 CLR 540 at 585 [106]. ↩
(2001) 33 MVR 159 at 170 [63]. ↩
(2002) 55 NSWLR 113 at 135 [140]. ↩
(2001) 33 MVR 159 at 169 [58]. ↩
cf Jordan House Ltd v Menow [1974] SCR 239 at 247‑248 per Laskin J. ↩
Cole v Lawrence (2001) 33 MVR 159. ↩
Joint reasons at [57], [59], [65]-[73]. ↩
Reasons of Gleeson CJ at [18]. ↩
Reasons of Callinan J at [125]. ↩
Reasons of Gleeson CJ at [13]-[14]; see also for an example the statement in the joint reasons at [78]: "The appellant was an adult woman … [in a] state of intoxication she had induced in herself." (emphasis added) ↩
Reasons of Callinan J at [130] referring to South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at 115-116 [4]-[7]. ↩
See eg discussion of one such difficulty in Taylor, "Should Addiction to Drugs be a Mitigating Factor in Sentencing?", (2002) 26 Criminal Law Journal 324 citing R v Smith [1987] 1 SCR 1045 at 1053; Lawrence (1988) 10 Cr App R (S) 463. ↩
Donoghue v Stevenson [1932] AC 562 at 580. ↩
Reasons of McHugh J at [30]. ↩
Reasons of McHugh J at [31]. ↩
[1974] SCR 239. ↩
[1995] 1 SCR 131; cf Desmond v Cullen (2001) 34 MVR 186. See also Oxlade v Gosbridge Pty Ltd unreported, New South Wales Court of Appeal, 18 December 1998 per Mason P; Rosser v Vintage Nominees Pty Ltd (1998) 20 SR (WA) 78; cf Johns v Cosgrove (1997) 27 MVR 110. There were particular features of these cases that do not exist in the present case and vice versa. ↩
(1988) 20 FCR 91. ↩
[1984] TLR 138 per Beldam J. See Orr, "Is an innkeeper her brother's keeper? The liability of alcohol servers", (1995) 3 Torts Law Journal 239; Solomon and Payne, "Alcohol Liability in Canada and Australia: Sell, Serve and Be Sued", (1996) 4 Tort Law Review 188. See also O'Halloran, "Social Host And Vendor Liability For Driving-Related Injuries Caused By Intoxicated Guests And Customers", (1987) Annual Survey of American Law 589. ↩
Solomon and Payne, "Alcohol Liability in Canada and Australia: Sell, Serve and Be Sued", (1996) 4 Tort Law Review 188 at 189. ↩
See reasons of Callinan J at [125], fn 46, [127] citing ss 44A and 67A of the Registered Clubs Act 1976 (NSW): see also reasons of Gleeson CJ at [16]; joint reasons at [74]-[75]. ↩
Reasons of McHugh J at [34]. ↩
cf reasons of McHugh J at [41]. ↩
Young, "Dram Shop Liability: A Sobering Thought for Licensees", (1998) 18(1) Proctor 30 at 33. ↩
Luntz, "Torts Turnaround Downunder", (2001) 1 Oxford University Commonwealth Law Journal 95; Stapleton, "The golden thread at the heart of tort law: Protection of the vulnerable", (2003) 24 Australian Bar Review 135. ↩
cf Jordan House Ltd v Menow [1974] SCR 239 at 248. ↩
Cole v Lawrence (2001) 33 MVR 159 at 160 [5]. ↩
Cole v Lawrence (2001) 33 MVR 159. ↩
Cole v Lawrence (2001) 33 MVR 159 at 167 [44]. ↩
Cole v Lawrence (2001) 33 MVR 159 at 170 [68]. ↩
Cole v Lawrence (2001) 33 MVR 159 at 173 [81]. ↩
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113. ↩
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at 116 [7]. ↩
This was a requirement of s 67A of the Registered Clubs Act 1976 (NSW) which at the relevant time provided as follows: "Removal of persons from premises of registered club Where a member of the police force is requested by the secretary or an employee of a registered club to turn out, or to assist in turning out, of the premises of the club any person – (a) who is then intoxicated, violent, quarrelsome or disorderly; (b) who, for the purposes of prostitution, engages or uses any part of the premises; (c) whose presence on the premises renders the club or the secretary of the club liable to a penalty under this Act; or (d) who hawks, peddles or sells any goods on the premises, it is the duty of the member of the police force to comply with the request and he may, for that purpose, enter the premises and use such reasonable degree of force as may be necessary." ↩
The section was amended in 1996 by the amendment of s 44A(3) and the insertion of s 44A(4). These sub-sections now provide: "(3) If a person on the premises of a registered club is intoxicated, the secretary is taken to have permitted intoxication on the premises unless it is proved that the secretary and all employees selling or supplying liquor took the steps set out in subsection (4) or all other reasonable steps to prevent intoxication on the premises. (4) For the purposes of subsection (3), the following are the relevant steps:asked the intoxicated person to leave the premises,contacted, or attempted to contact, a police officer for assistance in removing the person from the premises,refused to serve the person any alcohol after becoming aware that the person was intoxicated." ↩
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at 115-116 [4]-[7]. ↩
[1995] 1 SCR 131. ↩
[1974] SCR 239. ↩