Torts - Negligence - Essentials of action for negligence - Duty of care - Special relationships and duties - Other cases - Liquor seller or supplier - To liquor consumer - Whether general duty to prevent physical harm to liquor consumer - Whether duty to monitor and moderate level of liquor sold or supplied to consumer - Whether duty to ensure liquor consumer travelled safely from premises of supplier.

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469, referred to.

South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, followed.

Jordan House Ltd v Menow (1973) 38 DLR (3d) 105, not followed.

Judgment Number: [2007] TASSC 94

C.A.L. NO.14 PTY LTD and MICHAEL ANDREW KIRKPATRICK

1 These actions concern a fatal motorcycle accident that occurred on the Tasman Highway at Orford on the evening of 24 January 2002. The deceased had been drinking at a hotel at Triabunna named the Tandara Motor Inn ("the hotel"), and was riding to his home at Orford on his wife's motorcycle. As he approached the bridge over the Prosser River, he ran off the road on his right hand side into the gravel, travelled back towards the roadway, collided with the northern end of the bridge structure, and was killed. At the time of his death, he had a blood alcohol concentration of 0.253 grams of alcohol in 100 ml of blood.

2 His widow brought an action (no 196/2004) under the Fatal Accidents Act 1934 against the proprietor of the hotel, a company named C.A.L. No.14 Pty Ltd ("the hotel company"). Subsequently she brought a second action under that Act (no 617/2004) against the licensee of the hotel, Mr Kirkpatrick. Those actions have been consolidated. The Motor Accidents Insurance Board ("the MAIB") paid scheduled benefits in relation to the death of the deceased pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973. It has brought an action in the Burnie District Registry (no 31/2004) against the same two defendants to recover those scheduled benefits pursuant to s28C(2) of that Act. Loosely speaking, both plaintiffs contend that the defendants were negligent in serving too much liquor to the deceased, and in failing to prevent him riding away on the motorcycle. They contend that the defendants owned him a duty to exercise reasonable care to prevent harm to him being caused by his own intoxication.

3 Pursuant to orders made by the Master, I have conducted a trial of the issues relating to negligence, causation, contributory negligence and apportionment in relation to these actions. These are my reasons for my determinations in relation to those issues.

4 The deceased was an experienced motorcyclist. He knew the road that he was on. The driving conditions were good. There was no problem about visibility, the road surface, or traffic. The evidence does not suggest any reason for him to have run off the road and collided with the bridge other than intoxication. The deceased was a user of cannabis. Analysis of a blood sample taken during a post-mortem examination revealed evidence of cannabis use, but there was no evidence as to when the deceased last used cannabis, or to what extent. I have evidence from a consultant pharmacologist, Dr Perl, to the effect that the cannabis-related compounds found in his blood would still be present long after a user was under the influence of cannabis. Dr Perl also gave evidence to the effect that anyone with a blood alcohol concentration like that of the deceased would be very much under the influence of alcohol. It is quite clear that he died because his ability to drive the motorcycle was greatly impaired by alcohol intoxication.

5 The deceased lived with his wife in Orford. She last saw him on the day of his death when he left for work at about 7.50am. He worked for the local council, and was based at a depot in Triabunna very near to the hotel. His wife described him in an affidavit, prepared for a coronial inquest in 2002, as "a moderate to heavy drinker". There was evidence that he disapproved of workers drinking during working hours. He evidently did a full day's work on the day in question. A fellow worker, Mr Bowerman, gave evidence that the deceased finished work at the council depot at approximately 5pm or 5.05pm; that the workers there decided to have a beer together; and that the deceased had a stubbie along with the other workers, and was the last to leave the depot. When asked whether he knew if the deceased had had more than one stubbie, he said that he could not be sure. He said that he left the depot at approximately 5.20pm himself, and that the deceased was warming up the motorcycle at that time.

6 A Mr Kube gave evidence that he arrived at the hotel at about 5pm, and that the deceased arrived about 15 minutes later. Mr Kirkpatrick gave evidence that he arrived at the hotel at about 5.30pm to 6pm, and that the deceased was already there. Mr Kube and Mr Kirkpatrick both gave evidence that the deceased was drinking cans of pre-mixed Jack Daniels whisky and cola at the hotel. He had been served by Mrs Kirkpatrick, who left after her husband arrived.

7 At some stage after Mr Kirkpatrick's arrival, a decision was made to store the motorcycle in a storeroom at the hotel. Mr Kirkpatrick unlocked the storeroom from the inside. Mr Kube helped the deceased manoeuvre the motorcycle into the storeroom. Mr Kirkpatrick gave evidence that the deceased gave him the keys to the bike, and that he put them in the hotel's petty cash tin - a place where patrons' keys were routinely kept. Some time later, Mr Kube was collected by his wife, and left the hotel. At that stage the motorcycle was still in the storeroom. According to Mr Kirkpatrick, the deceased subsequently asked for the keys back. The bike was removed from the storeroom, and the deceased rode off into the night in the direction of his home.

8 Mr Kube gave evidence that he left the hotel at about 7.45pm. Mr Kirkpatrick said in an answer to an interrogatory that the deceased left the hotel shortly before 8.30pm. A police officer who investigated the accident, Sgt Reardon, recorded in a report that a Mrs Mallinson saw a man riding away from the hotel on a motorcycle at about 8.45pm. In an affidavit prepared for the inquest, which was tendered at the trial, a motorist gave evidence of nearly colliding with a motorcycle on its wrong side of the road just north of the Prosser River bridge at about 8.30pm. In another coronial affidavit that was tendered, a boy who had been fishing from the bridge, who saw the accident, said, "I'm not quite sure of the time but I think it was around 8.30pm." The deceased suffered severe chest injuries. He must have died almost immediately.

9 Dr Perl gave evidence to the effect that the deceased's blood alcohol content was consistent with him having consumed between 7.9 and 8.9 cans of pre-mixed Jack Daniels and cola. She assumed, for the purpose of her calculations, that he had started drinking around 5pm, stopped drinking around 8pm, and died at around 8.30pm. I am satisfied that those assumptions were reasonably accurate. Dr Perl took into account the weight of the deceased (as stated in a post-mortem report by a pathologist). She assumed that each pre-mixed can of Jack Daniels and cola contained 375 ml of liquid with an alcohol content of 6 per cent. The parties agreed at the trial that the only available cans of Jack Daniels and cola held 375 ml with an alcohol content of 6 per cent.

10 It appears from Dr Perl's evidence that, if the deceased consumed one stubbie of full strength beer with an alcohol content of 5 per cent by volume shortly after 5pm, that would have had about the same effect on him as five sixths of a can of Jack Daniels and cola. It is theoretically possible that the deceased drank two stubbies before leaving the council depot, but I think it unlikely that he would have consumed a second stubbie in the time available. He would have had to drink remarkably quickly. It is also theoretically possible that he still had some alcohol in his bloodstream from the previous night's drinking, but I think that is unlikely. Evidence as to his normal drinking habits was given by his widow, Mr Bowerman, Mr Kube and Mr Kirkpatrick. All of that evidence suggests that the deceased did not normally drink as heavily as he did on the night of his death.

11 Mr Kube gave evidence that the deceased consumed no more than three or four cans before he and his wife departed at about 7.45pm, but I do not regard him as a reliable witness. For one thing, he agreed at one stage in his cross-examination that the deceased had consumed about three cans before the motorcycle was put in the storeroom at about 6pm or 6.30pm. Early in his cross-examination, he estimated his own consumption of alcohol whilst at the hotel to have been twelve 8-ounce beers, but he later denied having said that.

12 Mr Kirkpatrick gave evidence that the number of cans that he served to the deceased was "Approximately three to four, four at the maximum." That figure did not include cans served by his wife. I do not regard Mr Kirkpatrick as a reliable witness either. It was established during his cross-examination that, when answering an interrogatory about the number of cans consumed by the deceased, he had understated the number. Since answering the interrogatory involved only asking his wife how many cans she had served the deceased, and adding the number of cans he had served him personally, his inaccurate answer must have been a dishonest one. Towards the end of his cross-examination, he agreed that the deceased had consumed six, seven or perhaps eight cans of Jack Daniels and cola.

13 Taking into account all of the evidence about the deceased's alcohol consumption, I am satisfied that he drank no more than eight cans of Jack Daniels and cola at the hotel; that he may have had seven; and that it is quite unlikely that he had less than seven.

14 There was a lot of evidence as to what signs of drunkenness the deceased displayed, and what signs of drunkenness he did not display. The following is a summary of that evidence:

• A Mrs Thirlway, who had been at a meeting at the hotel, gave evidence that she went into the bar to watch tennis, and was spoken to by the deceased, who said that he had worked with her brother. She said he went outside for 10 or 15 minutes, returned, and sat at the bar with his forearms and forehead on the bar. She said he subsequently had a conversation with Mr Kirkpatrick about people who worked for the council being back-biting bastards; that Mr Kirkpatrick told him he had had enough and it was time to leave; that the deceased started getting stroppy; and that she therefore left. She said it would have been 8pm or just after 8pm when she left. She was cross-examined as to whether she had seen various other signs of intoxication. She had not.

• Mrs Kube gave evidence that she offered the deceased a lift home two or three times, but that he declined, saying that he would ring his wife and that she would come and get him. She was asked about various signs of intoxication, and denied observing them. She said that the deceased seemed OK to her, and was "talking OK".

• An affidavit sworn by Mr Kube for the purpose of the inquest was tendered as an exhibit. In it he said that the motorcycle was placed in the storeroom because someone had said that there was a police speed camera at Orford, and because the deceased had had a few drinks.

• In his oral evidence, Mr Kube did not suggest that he had seen any sign of drunkenness. He gave evidence that Mr Kirkpatrick told him, at some stage after the accident, that he had released the motorcycle keys because the deceased was "getting agro".

• Mr Kirkpatrick gave evidence to the effect that, before the motorcycle was placed in the storeroom, a rumour was circulating that the police were setting up a breathalyser unit at Orford. He said he heard the deceased discussing his work with Mrs Thirlway, and that he "got sort of a little bit agitated about that". He said he noticed that the deceased had his head down on the bar at one stage. He said he asked the deceased whether he wanted him to ring his wife, and that the deceased was pretty agitated and said, "If I want you to ring my fuckin' wife I'd fuckin' ask ya." He described his response to the deceased, to the effect that the deceased should not go crook at him. He said he then left the bar where the deceased was. He said the deceased went outside for a time, returned, and asked to have the bike back. He said he asked the deceased a number of times whether he was "right to ride", and that the deceased said that he was fine. He said he had no reason to deny him access to the bike. He said that, as the deceased was leaving, he popped his head outside the door to "make sure he was right riding down the driveway". I infer that he thought the deceased was so drunk that he might not depart safely.

• In another affidavit prepared for the inquest, which was tendered as an exhibit, Mrs Mallinson said that she was waiting in a car outside the hotel bottle shop, and watched a motorcycle departing along the route taken by the deceased. She said the motorcycle was "fish tailing" from side to side. She said that either the bike or the crash helmet was red. She said she could tell from the pitch of the engine that the bike was not very big. The deceased was riding a red Honda 250cc motor cycle. I infer that he was the rider that Mrs Mallinson saw.

• Dr Perl gave evidence as to the likely effects of a blood alcohol concentration similar to that of the deceased. In a report that was tendered she said, "Even if the deceased was a heavy drinker with a high level of tolerance I would still expect there to have been obvious visible signs of intoxication present, which should have been obvious to any unimpaired observer."

15 Mr Kirkpatrick knew roughly how long the deceased had been drinking, knew what he was drinking, and was in a position to observe the pace of his drinking. He might not have known quite how much the deceased had had to drink, since he was probably unaware that he had been drinking at the council depot, and might not have known how many cans Mrs Kirkpatrick has served him. He told the deceased he had had enough. He offered to contact the deceased's wife so that she could come and get him. I am satisfied that he knew the deceased was so drunk that he should refuse service, and that he must have known that, to some degree, the deceased would endanger himself if he left on the motorcycle.

16 The plaintiffs contend that Mr Kirkpatrick should have stopped serving alcohol to the deceased earlier than he did. However there is a body of evidence that suggests that, from the time the motorcycle was placed in the storeroom to the time when the deceased was eventually refused service, the deceased showed no sign of intending to ride home on the motorcycle. The only sensible explanation for the motorcycle being placed in the storeroom was that it was intended to be kept there overnight. There would have been some risk of it being damaged or stolen if it had been left unattended in the hotel car park overnight after the hotel closed. Mr Kirkpatrick said in his affidavit for the inquest, which was tendered, that he was asked by Mr Kube if the deceased could store the motorcycle overnight. I have no reason to doubt the truth of that piece of evidence. Mr Kirkpatrick gave evidence that the original arrangement was that someone would ring the deceased's wife to get her to come and pick him up. I have no reason to doubt the truth of that piece of evidence either. I am satisfied on the basis of her evidence that she was willing and able to go to any local hotel to collect her husband and bring him home. That was the most sensible arrangement for the deceased to make once it was decided that he would not be riding the motorcycle home.

17 Mr Kirkpatrick said, both in his affidavit and in his oral evidence, that very soon after the motorcycle was placed in the storeroom, at a time when Mr Kube was out of earshot, the deceased arranged with him that he would get the motorcycle back later. I am not prepared to place any reliance on that evidence. I think Mr Kirkpatrick might well have invented that evidence in order to avoid being blamed for letting the deceased ride the motorcycle to his death. No other witness claims to have heard the deceased arrange to get the bike back later.

18 If, as suggested, the defendants owed the deceased a duty to protect him from the risk of suffering harm on his way home as a result of his own drunkenness, I do not think that duty was breached by Mr Kirkpatrick serving him as much alcohol as he did because the deceased was planning to get a lift home, and Mr Kirkpatrick understood that. It cannot have been much later than 8pm when the deceased was refused service. It was only after that event that he started asking for the motorcycle.

19 The plaintiffs contend that Mr Kirkpatrick should have refused to let the deceased have the motorcycle and its keys when he asked for their return. The motorcycle belonged not to the deceased, but to his wife. He was a bailee. When the motorcycle was placed in the storeroom, either Mr Kirkpatrick or the hotel company became a sub-bailee. As against a sub-bailee, a bailee in the position of the deceased is entitled at common law, upon demand, to the return of the property that is the subject of the sub-bailment: The Premier Group Pty Ltd v Followmont Transport Pty Ltd [1999] QCA 232; [2000] 2 Qd R 338. If the deceased had demanded the return of the motorcycle and the keys, and had been refused, he would have been entitled to use force to obtain possession of that property pursuant to the Criminal Code, s45, which reads as follows:

"45 It is lawful for a person entitled by law to the possession of movable property to take it from a person who is in possession of the property, but who neither claims right to it nor acts by the authority of a person so claiming, and if the person in possession resists him, to use such force as is necessary to obtain possession of the property; provided that such force is not intended and is not likely to cause death or grievous bodily harm."

20 By returning the motorcycle and keys, Mr Kirkpatrick made it possible for the deceased to contravene provisions of the Road Safety (Alcohol and Drugs) Act 1970. However he would not have been guilty of aiding or abetting the commission of any offence contrary to that Act unless he wished the deceased to ride the motorcycle. That is because criminal liability does not attach to an aider or an abettor unless that person intends the prohibited act to be done by the principal offender: Roughley v R [1995] TASSC 14; (1995) 5 Tas R 8. There is no evidence that Mr Kirkpatrick encouraged the deceased to ride the motorcycle. He helped him to do so by making the motorcycle and the keys available to him, but there is no evidence that he wanted the deceased to ride the motorcycle. On the contrary, his own evidence and that of Mrs Thirlway establishes that he offered to telephone the deceased's wife so that she could come and collect him. Mr Kirkpatrick did not commit an offence by making the motorcycle and the keys available to the deceased. There was no legislative provision that compelled him or authorised him to retain the motorcycle or the keys. He was obliged to deliver them to the deceased on demand, and that is what he did.

21 Mr Kirkpatrick was not entitled to physically prevent the deceased from riding the motorcycle. He had no right to assault him or falsely imprison him. The plaintiffs contend that he should have dissuaded the deceased from riding the motorcycle but, having regard to the evidence as to the deceased's mood, I think that any attempts to dissuade him from riding would have been unsuccessful.

22 The plaintiffs contend that Mr Kirkpatrick should have offered to take the deceased home, or should have arranged for someone else to do so. Again, having regard to the evidence of the deceased's mood, I think he would have refused any such offers of transport. I accept that he refused the offers of transport made by Mrs Kube. Similarly, I think he would have rejected any suggestion that he travel home by taxi.

23 The plaintiffs contend that Mr Kirkpatrick should have called the police in order to prevent the deceased riding home. Sgt Reardon gave evidence that he was the nearest officer on duty that evening, and that he was at Swansea. I think it is unlikely that he would have been prepared to travel all the way to Triabunna to deal with a drunk who was threatening to ride a motorcycle. He was not asked how he would have responded to a call from Mr Kirkpatrick. Even if he had been willing to intervene in some way, it is quite likely that the deceased would have left the hotel before his arrival, and that his attempt at intervention would have been ineffective. Taking all those matters into account, I am not satisfied that the fact that Mr Kirkpatrick did not call the police had any causative effect.

24 The plaintiffs contend that Mr Kirkpatrick should have phoned the deceased's wife and asked her to drive to the hotel and collect him. If Mr Kirkpatrick's version of events is accurate, he had time to make a call after the deceased rejected that idea and swore at him. I accept the widow's evidence that, if she had received a call from the publican, she would have gone and got her husband. I infer from one of her answers that she could have been contacted on either a home telephone or a mobile telephone. There was no evidence as to whether the home telephone had a silent number or a listed number. It is unlikely that the deceased and his wife would have had a silent number. In any event, Triabunna and Orford are such small places that one or two simple enquiries would probably have produced one of the required telephone numbers. It was reasonably foreseeable, once the deceased had been refused service and rejected the suggestion that his wife be contacted, that he would demand the return of the motorcycle and ride away. Contacting his wife, against his wishes and without his knowledge, would have been both reasonable and easy, and would have obviated the risk of harm. If, as suggested by the plaintiffs, the defendants had a duty to take reasonable care to prevent physical harm to the deceased resulting from his intoxication, I think that duty was breached by Mr Kirkpatrick not telephoning the widow, and that, as a result, the deceased rode away when he otherwise would not have done so, and met his death. The critical question, therefore, is whether such a duty of care was owed to the deceased.

The extent of a publican's duty of care to a customer

25 There is no doubt that a publican owes every customer a duty to take reasonable care for his or her safety, at least in certain respects. There is no doubt that the scope of that duty extends so that reasonable care must be taken to provide safe premises, safe access to premises, and food that is safe to eat, to give some examples. This case raises questions as to the scope of a publican's duty of care in relation to the serving of further drinks to a drunken customer, and the influencing or control of the conduct of a departing drunken customer.

26 Similar questions were considered by the High Court in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469. The appellant in that case had been drinking at a licensed club for most of the day in question, beginning with a "champagne breakfast" at which abundant quantities of spumante were provided. After leaving the club drunk at the end of the day, she was walking along a road in the dark, wearing dark clothing, when she was struck by a vehicle and seriously injured. Of the six judges who heard that case, two (McHugh and Kirby JJ) held that the club had breached its duty of care; two (Gleeson CJ and Callinan J) held that the club did not owe a general duty to take reasonable care to protect patrons against the risk of physical injury resulting from the consumption of alcohol, and that it had not breached any duty of care; and two (Gummow and Hayne JJ) left open the question of the scope of the duty of care, holding that, if the club owed the appellant a duty to monitor and moderate her drinking, a breach of that duty was not the cause of her injuries.

27 Both Gleeson CJ and Callinan J suggested that there could be exceptional cases in which there might be a duty to protect a drinker from the risks associated with alcohol consumption. At 477, Gleeson CJ said:

"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."

"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."

28 That was an appeal from the New South Wales Court of Appeal. The judges who heard the case in that court were unanimous in holding that the club did not owe its customer a duty to prevent harm caused by her own intoxication: South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113. The principal judgment was delivered by Ipp A-JA, with whom Heydon JA (as he then was) and Santow JA agreed. After thoroughly reviewing the Australian, Canadian and English authorities, Ipp A-JA said at 146:

"In this country the relationship between innkeeper or bartender, on the one hand, and the customer who consumes alcohol on the premises, on the other, has been known since the earliest days of European settlement. Nevertheless, apart from the isolated instances to which I have referred, no court has imposed a duty on innkeepers (or bartenders) to exercise due care to prevent harm to their customers caused by their own intoxication. To paraphrase Beldam LJ, the law has left it to responsible adults to assume responsibility for their own actions in consuming alcoholic drink. There are no reasons, in public policy, to change this approach. To the contrary, in my view, it is supported by commonsense, an element that underpins public policy."

29 One of the "isolated instances" referred to in that passage was the judgment then under appeal. There were two others: Johns v Cosgrove (1997) 27 MVR 110, in which Derrington J gave judgment for a drinker against a hotel proprietor; and Desmond v Cullen [2001] NSWCA 238; (2001) 34 MVR 186. In the latter case, a hotel licensee was successful both at first instance and before the New South Wales Court of Appeal, but the Court of Appeal judgments contain dicta as to the scope of the duty of care. At 193, Grove J, who delivered the principal judgment, accepted "that the duty of care of an innkeeper extends to refraining from serving intoxicating liquor to the apparently inebriated and, if inebriation does occur, to take reasonable steps in the circumstances in respect to the safety of the inebriate." Spigelman CJ, at 187, accepted that "the scope of the duty extends to an obligation to refuse to continue to serve a client of the hotel, when that client passes a certain state of inebriation, a state perhaps not capable of definition, but capable of assessment." All members of the court accepted that the "boundary" of the duty of care was not confined to "the curtilage of the property of the hotel": Spigelman CJ at 187, Young CJ in Eq at 188, Grove J at 194. However the dicta in that case are inconsistent with the ratio decidendi of the Court of Appeal in Cole.

30 My research has revealed a fourth "isolated instance" of an Australian court imposing such a duty of care on the proprietor and licensee of a saloon, in Rosser v Vintage Nominees Pty Ltd (1998) 20 SR(WA) 78. In that case a commissioner of the District Court of Western Australia followed the decision of Derrington J in Johns v Cosgrove (supra).

31 In the passage that I quoted above from the judgment of Ipp A-JA in Cole (supra), the reference to Beldam LJ concerned Barrett v Ministry of Defence [1994] EWCA Civ 7; [1995] 3 All ER 87, in which the English Court of Appeal held that there was no breach of duty in supplying drinks to a naval airman who drank until he became unconscious.

32 In Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91, the Full Court of the Federal Court held that a hotelkeeper had breached a duty of care that it owed to protect a patron from a foreseeable risk of injury from the acts of another patron. In that situation, there may be a duty to stop serving alcohol to a patron, but the duty is owed to a different patron. That case is therefore distinguishable from this one.

33 Counsel for the widow submitted that I should follow Jordan House Ltd v Menow (1973) 38 DLR (3d) 105, a decision of the Supreme Court of Canada. In that case, hotel employees served a man with beer past the point of visible intoxication and ejected him from the hotel, which was on a busy highway. He was walking near the centre line of the highway when he was run down by a negligent motorist. It was held that the hotel had a duty to take care that he was not exposed to injury because of his intoxication. However in Desmond v Cullen (supra) both Spigelman CJ and Grove J pointed out that the Canadian law of torts reflects the conditions of that society, including its own statutory regimes. At 192, Grove J said:

"... it has been noted that Ontario, the province in question, had a form of dram shop law which offered recovery to third parties in respect of person and property and to inebriates who suicided or were fatally injured".

34 The plaintiffs relied on some provisions in the Liquor Licensing Act 1990. Under s78 of that Act, it is an offence to sell liquor to a person who appears to be drunk. Under s79, it is an offence to supply liquor to a person who appears to be drunk on licensed premises. That provision evidently applies not only to the supply of liquor by a staff member to a customer, but also to a supply by one customer to another. Under s46, a licensee has the duty to ensure that business is carried on in such a way that he or she can exercise effective control over the sale and consumption of liquor on the premises. It was not argued that either plaintiff had a cause of action based on breach of statutory duty. I do not think that these legislative provisions are significant since, if the suggested duty of care did exist, it would result in obligations arising well before a customer became so obviously drunk that service could lawfully be refused. Similar legislation was considered in Cole. Gleeson CJ observed (at 217 CLR 479):

"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."

35 There is no binding High Court authority as to whether a publican has a duty of the type suggested by counsel for the plaintiffs. The only decision of an Australian appellate court that is directly in point is that of the New South Wales Court of Appeal in Cole. In the absence of any binding authority, a decision of the appellate court of another State should ordinarily be followed: Marshall v Watt [1953] Tas R 1 at 14 - 15; Carrick v J (1989) 39 A Crim R 235 at 250 - 251. I do not think I should follow the Canadian case relied on by counsel for the widow because of the different social conditions and statutory provisions that it reflects.

36 The decision of the New South Wales Court of Appeal in Cole is authority for the proposition that a publican's duty of care to a customer does not generally require the taking of care to prevent harm caused by the customer's own intoxication. It follows that the defendants did not owe the deceased any duty to stop serving him earlier than they did, or to avoid the risk of him having a motorcycle accident, unless there was some reason to treat this as an exceptional case in which some such duty did exist. No guidance was given by Gleeson CJ or Callinan J in Cole as to what sorts of circumstances might give rise to the existence of such a duty when none is generally owed. However Ipp A-JA dealt with that point in the Court of Appeal. He said the following (at 55 NSWLR 146):

"There may, however, be circumstances which bring about a different result. For example, it may be that where a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises, the scope of the duty of care of the innkeeper will be extended to require reasonable steps to be taken for the protection of the intoxicated person. But Mrs Cole's case was not put on this basis and it is not necessary to deal with the issue."

37 In my view it could be reasonable to make exceptions to the general rule in cases of intellectually impaired drinkers, drinkers known to be mentally ill, drinkers who become unconscious, and, as suggested by Ipp A-JA, individuals who become "completely incapable" of looking after themselves. In my view the deceased was not so drunk as to be completely incapable of looking after himself. He was capable of deciding that he wanted to ride home, deciding that he did not want a call made to his wife, and manoeuvring the motorcycle out of the storeroom. I do not think anything that was done in relation to the safe storage of the motorcycle warrants a departure from the general rule in this case. It may be very unusual for a motorcycle to be stored in a hotel's storeroom amongst cartons of beer, but there is no reason why a publican should owe a greater duty of care to a customer as a result of such an unusual arrangement being made. This was not a case that fell outside the scope of the general rule stated by the Court of Appeal in Cole.

38 For these reasons, I determine that the death of the deceased was not the result of actionable negligence on the part of either of the defendants.