C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)

C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Torts - Negligence - Essentials of action for negligence - Duty of care - Special relationships and duties - Other cases - Duty of liquor seller or supplier to consumer - Whether duty to take reasonable care to deter intoxicated liquor consumer from riding a motor cycle from premises of supplier.

South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469, referred to.

Appellant Sandra Scott: Wallace Wilkinson & Webster

Judgment Number: [2009] TASSC 2

SANDRA SCOTT v C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN

(ACN NO 009 504 081) MICHAEL ANDREW KIRKPATRICK

MOTOR ACCIDENTS INSURANCE BOARD v C. A. L. NO 14

PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)

2 That the judgments entered in favour of the respondents be set aside.

3 That the parties be heard as to the further orders to be made.

SANDRA SCOTT v C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN

(ACN NO 009 504 081) MICHAEL ANDREW KIRKPATRICK

MOTOR ACCIDENTS INSURANCE BOARD v C. A. L. NO 14 PTY LTD T/AS TANDARA MOTOR INN (ACN NO 009 504 081)

1 The principal question arising in the appeal is whether the operator of a hotel and its licensee owed a duty of care to a patron who had become intoxicated at the hotel, to prevent him leaving the hotel on a motor cycle while so intoxicated.

2 A fatal accident occurred on the Tasman Highway at Orford on the evening of 24 January 2002. Shane John Scott ("the deceased") had been drinking at the Tandara Motor Inn ("the hotel") at Triabunna and was riding in a southerly direction towards his home at Orford on a motor cycle belonging to the appellant, Sandra Scott, his wife. As he approached the bridge over the Prosser River, he ran off the road on the western and incorrect side, travelled back onto the roadway, collided with the northern end of the western guard rail of the bridge, and was killed. At the time of his death, he had a blood alcohol concentration of 0.253 grams of alcohol in 100 millilitres of blood.

3 His widow brought an action under the Fatal Accidents Act 1934, against the proprietor of the hotel, the first respondent in each appeal ("the hotel company"). Subsequently, she brought a second action under that Act against the licensee of the hotel, the second respondent in each appeal ("Mr Kirkpatrick"). Those actions were consolidated. The appellant Motor Accidents Insurance Board paid scheduled benefits in relation to the death of the deceased, pursuant to the Motor Accident (Liabilities and Compensation) Act 1973. It brought an action against the same two defendants to recover those scheduled benefits, pursuant to that Act, s28C(2). Loosely speaking, both plaintiffs contended that the defendants were negligent in serving too much liquor to the deceased and failing to prevent him riding away on the motor cycle, arguing that the defendants owed him a duty to exercise reasonable care to prevent harm to him caused by his own intoxication.

4 Pursuant to orders made by Holt AsJ, a trial was conducted that concerned the issues relating to negligence, causation, contributory negligence and apportionment. The trial judge considered that he should follow South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, particularly at 146, as 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. The learned judge held that there was nothing exceptional in the facts of the case to warrant a departure from that general rule.

5 I will refer to the facts found by the learned trial judge, where necessary supplementing them with other facts the evidence established, or with references to evidence.

6 The death of the deceased was caused by his ability to drive the motor cycle being greatly impaired by intoxication from alcohol. He was an experienced rider who knew the road well. Driving conditions were good and there was no problem with visibility, the road surface or traffic. Based on my own knowledge of the area, almost all of his journey was on the Tasman Highway and extended for a distance of possibly six or seven kilometres. The evidence did not suggest any reason for him to have run off the road and collide with the bridge, other than intoxication. Anyone with a blood alcohol concentration of 0.253 grams of alcohol in 100 millilitres of blood would be very much under the influence of alcohol.

7 The deceased was a moderate to heavy drinker of alcohol, but most of what he consumed was taken home for consumption other than in a hotel, having been purchased by him at local bottle shops and the like. He was a regular customer of the hotel's bottle shop, but not of its public bar. His drinks of preference were premixed cans of Jack Daniels and cola.

8 He worked for the local council, and was based at its depot in Triabunna, very near the hotel. His wife worked some distance away for another council. They last saw each other at about 7.50am on the day of his death, when he left for work. She had given him to understand that she would also be going to work and did not expect to return home until about 8pm, which was about 1½ hours later than the time at which she usually returned home from work. He finished work at about 5pm. It was her evidence that he was always home before her. Her plan to be late home that day probably accounts for his decision to drink at the hotel public bar after work that day, instead of following his usual practice to go straight home from work, often after having purchased alcohol for consumption at home. At lunchtime that day, he told a fellow worker, Mr Rex Kube, that he would join him for a drink after work. When they finished work at about 5pm, the deceased and some other workers drank beer together before heading off. One of the others, Mr Bowerman, gave evidence that the deceased had a stubbie of beer, but he could not say whether he had more than that.

9 Mr Kube's evidence was that he arrived at the hotel at about 5pm and that the deceased arrived about 15 minutes later. Mr Kirpatrick's evidence was that he arrived for work at the hotel at between 5.30 and 6pm, and the deceased was already there. At first, the deceased drank with Mr Kube. He was drinking cans of premixed Jack Daniels and cola. Initially, he was served by Mr Kirpatrick's wife, who left after her husband arrived.

10 There was talk about police being in the area, possibly manning a breathalyser unit. At some stage after Mr Kirpatrick's arrival, a decision was made to store the motor cycle, on which the deceased had arrived at the hotel, in a hotel storeroom. The evidence of Mr Kirkpatrick and Mr Kube established that it was Mr Kube who suggested it. Mr Kirkpatrick unlocked the storeroom from the inside and Mr Kube helped the deceased to manoeuvre the motor cycle into the storeroom. Mr Kirpatrick's evidence was that the deceased gave him the keys to the bike and that he put them in a petty cash tin, which was a place where patrons' keys were routinely kept.

11 It was the evidence of Mr Kube that he was collected by his wife and left the hotel at about 7.45pm. The learned judge found that the accident happened at about 8.30pm, but a precise finding could not be made. I infer that the deceased left the hotel on the motor cycle no more than about 10 minutes before the accident occurred. Shortly before he left the hotel, he asked Mr Kirkpatrick for the keys to the motor cycle and was given them. Mr Kirpatrick unlocked the storeroom door and the deceased recovered the motor cycle and rode away.

12 It was unlikely that the deceased had consumed more than one stubbie of beer at his workplace before going to the hotel. It was found by the learned judge that at the hotel he was served and consumed no more than eight 375 millilitre cans of Jack Daniels and cola; that he may have had seven; and that it was unlikely that he had less than seven. There was evidence that six percent of a can was alcohol and that one stubbie of full strength beer would have had the same effect as five/sixths of a can of Jack Daniels and cola.

13 The learned judge summarised the evidence of signs of drunkenness displayed by the deceased in the following way. A Mrs Thirlway said that she went into the bar to watch tennis on television, and was spoken to by the deceased, who said that he had worked for her brother. She said that he went outside for 10 or 15 minutes and returned, some time after which she saw him sitting at the bar with his forearms and forehead on the bar. She said that subsequently she heard the deceased have a conversation with Mr Kirpatrick about people who worked for the council being back-biting bastards; that Mr Kirkpatrick told the deceased that he had had enough and it was time to leave; that the deceased started getting stroppy; and that, as a result, she left. Not referred to by the learned judge was her further evidence that when she left, the deceased's head was back on the bar again. She said that it was 8pm, or just after 8pm, when she left. The learned judge referred to Mrs Thirlway having been cross-examined as to whether she had seen various other signs of intoxication and she had not. In fact, she was asked if she formed a view about whether he was affected by alcohol and she said no, because he had been quite good before he temporarily left the bar. His quick change on his return to the bar was something she could not understand. She said that before he went out he seemed so nice, but after he returned he was so unpleasant she did not want to talk to him. She said that she noticed on his part no clumsiness, fumbling, unsteadiness, swaggering, swaying or slurring of speech. She thought he just seemed tired and wanted to go to sleep. Also not referred to by the learned judge was her evidence that when Mr Kirkpatrick told the deceased that he had had enough and it was time to leave, he asked the deceased for his wife's telephone number so that she could come and get him, at which the deceased became angry and responded "if I want my wife I'll fucken ring her myself". She said that Mr Kirkpatrick turned away and said nothing more to the deceased.

14 The learned judge referred to Mrs Kube's evidence that she offered the deceased a lift home two or three times, but he declined, saying that he would ring his wife and she would come and get him. She said that she observed no signs that he was intoxicated, that he seemed and was talking "okay". It was her evidence that the reason she offered to drive him home was that her husband had said that the breathalyser was at Orford and she knew that the deceased lived at Orford, but she did not think there was anything wrong with him. She knew that his motor cycle had been put away because of the breathalyser.

15 Reference was made by the learned judge to the fact that in Mr Kube's evidence, he did not suggest that he had seen any sign of drunkenness on the part of the deceased. Reference was also made to his evidence that at some stage after the accident, Mr Kirkpatrick told him that he released the motor cycle keys to the deceased because he was "getting aggro".

16 The learned judge referred to the following matters in Mr Kirkpatrick's evidence. He heard the deceased discussing his work with Mrs Thirlway and noticed that he "got sort of a little bit agitated about that". He noticed that the deceased had his head down on the bar at one stage. He asked the deceased whether he wanted him to ring his wife, and 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 then left the bar where the deceased was. He said the deceased went outside for a time, returned, and asked to have the motor cycle back. He said that he asked the deceased a number of times whether he was "right to ride", and that the deceased said that he was fine. Mr Kirkpatrick said that he had no reason to deny him access to the motor cycle. As the deceased was leaving, Mr Kirkpatrick popped his head outside the door to "make sure he was right riding down the driveway". The learned judge inferred that Mr Kirkpatrick thought the deceased was so drunk that he might not depart safely. Mr Kirkpatrick denied that there came a point in time when he refused to serve the deceased, but the learned judge did not accept that, finding that he told the deceased he had had enough.

17 A Mrs Mallinson, who was waiting in a car outside the hotel bottle shop, saw the motor cycle "fishtailing" from side to side as it proceeded along the exit road from the hotel. Evidence of a Dr Perl included that even if the deceased was a heavy drinker, with a high level of tolerance, there would have been obvious visible signs of intoxication present, which should have been obvious to any unimpaired observer, having regard to the high level of his blood alcohol concentration.

"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."

19 The learned judge said that it was Mr Kirkpatrick's evidence that the original arrangement was that someone would ring the deceased's wife to get her to come and pick him up, and his Honour said that he did not doubt the truth of that evidence. The learned judge was referring to evidence of Mr Kirkpatrick about the abusive response he received from the deceased to his offer to ring the deceased's wife. His evidence-in-chief included the following passage:

"Did you say something to him then? ... Yes, I did ask him whether - because the - the original plan that the group had made was for somebody to - either Shane or one of the group to ring his wife to come and pick him up, so I did ask him whether it was - whether he wanted me to ring his wife.

And did you get a response? ... I got a response.

What was it? ... He was pretty -

Use the exact words please? ... He was pretty agitated, he said, 'If I want you to ring my fuckin' wife I'd fuckin' ask ya.'

What did you do in response to that? ... I said, 'Whoo hang on, whoo, whoo, whoo, this is not, you know, don't go crook at me, this is not the arrangement that was made.'

Right. And did you leave the bar? ... Yes, I had to tend the Keno area."

20 Later, in cross-examination, the following occurred:

"Now when he swore at you, you simply walked away from him, didn't you? ... Yes.

You didn't say 'hey, come on', you just turned your back and walked away? ... No, I said 'come on, don't - don't go crook at me, it's not the - the arrangement was for me to ring your wife'."

21 It was also found by the learned judge that it was not much later than 8pm when the deceased was refused service at the hotel and that it was only after that event that he started to ask for his motor cycle. Unknown to the deceased, his wife had returned home much earlier than she had indicated, returning shortly after 6pm. Based on her evidence, a finding was made that if she had received a telephone call from Mr Kirkpatrick, asking that she drive to the hotel to collect the deceased, she would have done so. It is probable that, if he had made inquiries, Mr Kirkpatrick could have ascertained her telephone number. The learned judge found that contacting her, against the wishes of the deceased and without his knowledge, would have been reasonable and easy, and would have obviated the risk of harm. His Honour posed as the critical question, whether Mr Kirkpatrick owed a duty to take reasonable care to prevent physical harm to the deceased resulting from his intoxication. If there was such a duty, his Honour concluded that it was breached.

22 The appellants submitted to the learned trial judge that Mr Kirkpatrick should have stopped serving alcohol to the deceased earlier than he did. His Honour concluded that if the respondents 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, the duty was not breached by Mr Kirkpatrick serving him as much alcohol as he did because the deceased was planning to obtain a lift home, and Mr Kirkpatrick understood that. It was only after the deceased was refused service that he asked for the return of his motor cycle.

23 The first three grounds of appeal assert error by the learned judge in holding that there was no duty of care to influence or control the conduct of a departing drunken customer; in finding and determining that on the facts of the case, the scope of the duty of care owed by the respondents did not extend to the taking of reasonable care for the protection of the deceased; and in failing to find that by assuming control of the motor cycle and its keys, Mr Kirkpatrick had the power to influence and control the conduct of the deceased and thereby assumed a duty of care.

24 The learned trial judge followed the New South Wales Court of Appeal in South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 as 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. The principal judgment was of Ipp A-JA, who declined to follow two Canadian cases, Jordan House Ltd v Menow (1973) 38 DLR (3d) 105 and Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222, in which it was held that there was a duty on a hotelier to take reasonable care that a patron was not exposed to injury because of the patron's intoxication. In the second of those cases it was held at 230, to be "clear that a bar owes a duty of care to patrons, and as a result, may be required to prevent an intoxicated patron from driving where it is apparent that he intends to drive". The Canadian cases were followed in the Supreme Court of Queensland by Derrington J in Johns v Cosgrove (1997) 27 MVR 110 at 114 and seemingly approved by Grove J, but doubted by Spigelman CJ, in Desmond v Cullen [2001] NSWCA 238; (2001) 34 MVR 186 at 193 and 187 respectively. They are contrary to the decision of the Court of Appeal in Barrett v Ministry of Defence [1994] EWCA Civ 7; [1995] 3 All ER 87.

25 At par193, Ipp A-JA, concluded that the voluntary act of drinking until intoxicated is to be regarded as a deliberate act taken by a person exercising full personal autonomy for which that person should carry personal responsibility in law. At par197, his Honour accepted that there may be circumstances which bring about a different result, and gave as an example a case 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. His Honour was of the view that in such a case, 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. Cole's case was not such a case. The other members of the Court of Appeal agreed with Ipp A-JA.

26 On appeal to the High Court in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469, two of the six judges, Gleeson CJ and Callinan J, agreed with the Court of Appeal that there is no general duty to take reasonable care to protect patrons against risks of physical injury resulting from a consumption of alcohol. Two of the judges, Gummow and Hayne JJ, did not find it necessary to decide the question. The other two judges, McHugh and Kirby JJ, disagreed with the Court of Appeal and were of the view that the club owed Mrs Cole a personal duty to take reasonable care not to expose her to the risk of injury brought about by her intoxication as a result of drinking an excessive amount of alcohol on the club's premises. Their Honours based their conclusion on the common law duty of occupiers of premises to take reasonable care for the safety of those who enter the premises.

27 Although holding that there is no general duty to take reasonable care to protect patrons against risks of physical injury resulting from a consumption of alcohol, Gleeson CJ at par17, accepted that it is possible that there may be 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 intoxication. Similarly, Callinan J, at par131, accepted that there may be exceptional cases in which vendors of alcoholic drinks may be liable in tort for the consequences of the voluntary excessive consumption of them.

28 I prefer the view of the Court of Appeal in Cole, which was largely supported on appeal by the judgments of Gleeson CJ and Callinan J. To conclude that an actionable duty in negligence was owed in this case requires acceptance of the existence of a duty that has not been recognised in a superior court in this country other than in Johns v Cosgrove. For the reasons given by the Court of Appeal, an extension of the duty of care is undesirable.

29 It was argued for the appellants that even if such a duty does not generally apply, this is an exceptional case. Emphasis was placed on the fact that Mr Kirkpatrick had been entrusted with the keys to the motor cycle at a time when the deceased had decided that he did not want to ride it while affected by the alcohol he had consumed, and the fact that Mr Kirkpatrick was in control of the situation and had the power to prevent the deceased from using the motor cycle simply by refusing to hand over the keys and making the motor cycle available to him. Emphasis was also placed on the finding of the learned judge that Mr Kirkpatrick could easily have acted contrary to the deceased's wishes and telephoned his wife to come and get him. All of those matters established that Mr Kirkpatrick had the power to prevent the deceased from riding the motor cycle, if he had chosen to exercise that power, but I do not accept that they make this an exceptional case giving rise to the existence of a duty of care.

30 The evidence established that Mr Kirkpatrick was concerned for the welfare of the deceased. He asked if he could telephone his wife to come and get him and he questioned the deceased about his ability to ride. In aggressive terms, the deceased rejected the offer of a call to his wife and asserted that he was "right to ride". In the circumstances, a duty of care requiring Mr Kirkpatrick to do more than he did, should not be imposed by this Court. The deceased should be treated as solely responsible for his own actions.

31 It was submitted to the learned trial judge by the appellants that Mr Kirkpatrick should have refused to let the deceased have the motor cycle and its keys when asked for their return. The learned judge found that the deceased was a bailee of his wife's motor cycle and that either Mr Kirkpatrick or the hotel company became a sub-bailee. On the authority of Premier Group Pty Ltd v Followmont Transport Pty Ltd [2002] Qd R 338, his Honour held that a bailee in the position of the deceased was entitled at common law, upon demand, to the return of the property that was the subject of the sub-bailment. His Honour also held that if Mr Kirkpatrick had refused to return the motor cycle and the keys, the deceased would have been entitled to use force to obtain possession pursuant to the Criminal Code, s45. That section provides:

"45 It is lawful for a person entitled by law to the possession of moveable 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."

32 It was held by the learned judge that Mr Kirkpatrick was obliged to deliver the motor cycle and keys to the deceased on demand, and that he complied with such demand.

33 Grounds 4, 5 and 6 of the appeal attack those conclusions. Ground 4 asserts that the learned judge erred in law by holding that the deceased was entitled at common law, on demand, to the return of the motor cycle and its keys. Ground 5 asserts that the learned judge erred in law by holding that had Mr Kirkpatrick refused to return the motor cycle and keys, the deceased would have been entitled to use force to obtain possession of them. Ground 6 asserts that the learned judge erred in law and in fact by failing to find that the bailment of the motor cycle and keys was subject to the express term that they would not be returned to the deceased until next morning and therefore, that the deceased had no immediate right to possession; and by failing to find that the bailment was subject to a term that the motor cycle and keys would not be returned to the deceased when he was intoxicated and therefore, that he had no immediate right to possession.

34 Ground 6 has no merit. The only evidence about the agreement to store the motor cycle at the hotel came from Mr Kube and Mr Kirkpatrick. Mr Kube said that because of talk that police were in the area, he suggested that the motor cycle be placed in the storeroom. Mr Kirkpatrick gave him the storeroom keys to enable him and the deceased to put the motor cycle there, which they did. Mr Kube said he returned the keys to Mr Kirkpatrick in the bar. Mr Kirkpatrick's evidence was a little different, but the differences are not material to the issue I am considering. He said that Mr Kube approached him and asked whether the deceased could put the motor cycle away in the storeroom. Mr Kirkpatrick agreed. He thought at the time they may have been worried about the breathalyser. He said that he helped the other two men put the motor cycle in the storeroom and he locked the door after that. His understanding was that the deceased would telephone his wife when he wanted to go home and she would collect him. It was also his understanding that the deceased would collect the motor cycle from the hotel next day. He did not say that he was told that, merely that it was his understanding. He said that when the motor cycle was stored, the deceased gave him its keys, which he put in a petty cash tin, a place where customers' keys were normally put if they handed them over for safekeeping.

35 The evidence did not permit a finding that it was a term of a binding agreement between the deceased and Mr Kirkpatrick, on his own behalf or on behalf of the hotel company, that the deceased would have no right to recover possession of the motor cycle until the next day, or until he was sober, and that Mr Kirkpatrick would be entitled to refuse him earlier possession. All it established was that Mr Kirkpatrick agreed that the deceased could store the motor cycle in the storeroom, and that it was the deceased's intention, which Mr Kirkpatrick understood, that he would return for the motor cycle the following day having travelled home with his wife that night once he had telephoned her to collect him.

36 Grounds 4 and 5 raise more difficult questions concerning whether the deceased was entitled to the return of the motor cycle and keys on demand. In Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18 at 45, Deane, Dawson, Toohey and Gaudron JJ referred to the powers of a citizen to prevent the commission of a crime or a breach of the peace, adding that rights arising from ownership do not prevail against those powers if there is an immediate threat of a physical kind. In support of those propositions their Honours referred to Albert v Lavin [1982] AC 546, R v McKay [1957] VicRp 79; [1957] VR 560 and R v Turner [1962] VicRp 2; [1962] VR 30.

37 Albert v Lavin established the right of a citizen, in whose presence a breach of the peace was being, or reasonably appeared to be about to be, committed, to take reasonable steps to make the person who was breaking or threatening to break the peace refrain from doing so, even to the extent of detaining that person against his or her will in an appropriate case. R v McKay and R v Turner were cases of a homicide by an act committed for the purpose of apprehending an apparent thief who had been caught in the act and was fleeing. They are not directly in point.

38 In Gollan v Nugent at 32, Brennan J cited Albert v Lavin as authority for the proposition that a person may take reasonable steps to restrain a breach of the peace which that person reasonably apprehends is about to be committed in that person's presence. His Honour went on, at 33, to state a number of other propositions, including that if a drunk person goes to drive his car and a second person takes the key out of the ignition, the second person incurs no liability in trespass for damages for depriving the driver temporarily of the car, nor liability in detinue for damages for refusing the driver's immediate demand to return the key, but he would be liable in detinue if he did not return the key when the driver had sobered up or directed delivery of the key to a third person. Brennan J cited an obiter dicta in Garrett v Arthur Churchill Ltd [1970] 1 QB 92 at 99 as authority for the proposition that a plaintiff would be precluded from such relief if his intended use of the thing possessed was criminal.

39 A statutory right to use reasonable force to recover property taken by a trespasser was considered by Angel J in Nguyen [2002] NTSC 38; (2002) 130 A Crim R 447. That was a criminal case in which an intoxicated driver of a car used force against a person who attempted to remove the keys of the car to prevent him from driving. At 450 - 451, Angel J referred to the dicta of Brennan J, and at 452, held that driving while intoxicated posed an immediate threat to the safety of other road users, and gave rise to a reasonable apprehension of, or a likely breach of the peace, and as such the driver was not entitled to possession of the vehicle or car keys. However, it should be noted that a basis for so holding was that in the circumstances, the driver was not in peaceable possession of the vehicle or its keys, which was required for the operation of a statutory defence of the use of force to resist the taking of property, or to retake it from a person who had taken it. The Criminal Code, s45, contains no requirement of peaceable possession on the part of a person who uses force to recover possession of property to which that person is entitled.

40 It is also to be noted that the Traffic Act 1925, s41A, empowers a police officer to forbid an intoxicated person to drive and to seize ignition keys and render a vehicle immobile should an intoxicated person be in charge of the vehicle in question, but no such power is given to citizens in general.

41 The question whether Mr Kirkpatrick was entitled to retain the motor cycle or its keys, notwithstanding the demand of the deceased that he be given possession of them, concerns only his power to do so. The answer to such a question does not resolve whether Mr Kirkpatrick owed a duty in negligence to the deceased not to release the motor cycle or its keys to him. For the reasons I have given, it should not be held that such a duty was owed in the circumstances of this case.

SANDRA SCOTT v C. A. L. NO 14 T/AS TANDARA MOTOR INN

(ACN NO 009 504 081) MICHAEL ANDREW KIRKPATRICK

MOTOR ACCIDENTS INSURANCE BOARD v C. A. L. NO 14

43 I have had the benefit of reading the reasons for judgment of Crawford CJ and those of Tennent J. Whilst I agree with and adopt Crawford CJ's summary of the facts, I do not agree with his conclusion that in the circumstances of this case no relevant duty of care was owed by the respondents to Shane Scott. On that issue, for the following reasons, I am in agreement with Tennent J that a duty of care was owed and was breached.

44 In addressing this appeal, I am guided by what Gummow J said in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at par18. Heydon J agreed with Gummow J at par283, and Callinan J agreed with him as to duty and the nature and extent of the obligations owed at par270. Gummow J said as to actions for negligence that the basic and settled matters of legal principle involved are:

"First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48)."

45 At the outset I should say that I am not purporting to determine whether a generally applicable duty of care is owed by a commercial supplier of alcohol, a hotelier, to a patron of the hotel to take reasonable care to protect that patron from the risks of physical injury resulting from the consumption of alcohol. In this regard I adopt what was said by Gleeson CJ in Cole v South Tweed Heads Rugby Club [2004] HCA 29; (2004) 217 CLR 469 ["Cole"] at par9:

"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."

46 It is, of course, pertinent that prior to Mr Scott embarking on the journey that resulted in his death, he had been at the first respondent's hotel consuming alcohol served to him by the licensee of the hotel, the second respondent Michael Kirkpatrick. It is well settled that of itself, that relationship carried with it a duty of care. One aspect of that duty is an obligation to take reasonable care to protect a patron from the risks of violent behaviour by other patrons: Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1989) 91 ALR 149; Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447; South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113; TAB Limited v Atlis [2004] NSWCA 322; Wagstaff v Haslam [2007] NSWCA 28; (2007) 69 NSWLR 1; and Roney v Priestman [2004] TASSC 96. That aspect of the duty is an extension of the duty of care owed by an occupier to an entrant. As to that duty and extensions of it in relation to premises that sell alcohol, including an extension of it to protect patrons of the premises from injury resulting from the consumption of alcohol, in Cole:

"31 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.

32 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."

"91 ... 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.

92 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.

93 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. ..."

47 In the same case, Gleeson CJ, at par18, and Callinan J, at par125, held that the duty of care owed to the patron did not extend to taking reasonable care to protect her against the risks of physical injury resulting from the consumption of alcohol. Gummow and Hayne JJ, in their joint reasons, did not find it necessary to resolve the issue of the duty of care owed to the patron in that case, but raised a number of difficulties as to its availability at pars65 to 73. Whilst I do not doubt the significance of those difficulties in the circumstances of Cole, and the duty of care postulated in that case, in my respectful view, those matters have little bearing here. This case, unlike Cole, did not raise difficulties in relation to serving Mr Scott with alcohol and monitoring his intoxication as part of a large and shifting population during the course of a day. Mrs Cole was one of about 100 people who attended breakfast at the defendant club at the outset of the day that concluded with her injury. This case also does not raise difficulties about identifying the level of intoxication that was relevant and the assessment of that level. Mr Scott involved the hotel in the means by which he was to travel from the hotel; Mrs Cole did not. Mr Scott was well-known to Mr Kirkpatrick and was a sufficiently established patron to be allowed to make purchases on credit. Mr Kirkpatrick took over serving in the public bar at the hotel on the night in question at about 5.45pm, about 30 minutes after Mr Scott began drinking in that bar. Thereafter Mr Kirkpatrick was the only person serving in the bar. At the outset there were no more than six to eight people in the bar. By about 7.15pm, Mr Scott was one of only two people who remained in the bar and for some time after that other person left, Mr Scott was the only patron, save for a period when one of the hotel's employees, Patricia Thirlway and her 10 year old daughter entered the bar to watch tennis on the TV in the bar. The extent of Mr Scott's intoxication only became relevant after Mr Kirkpatrick refused him further service and Mr Scott changed his mind about the means by which he would travel home and asked Mr Kirkpatrick for the motor cycle. At that time Mr Kirkpatrick must have known that by reason of intoxication Mr Scott would be at risk if he left on the motor cycle. Mr Kirkpatrick knew that Mr Scott was so drunk that further service should be refused, that Mr Scott had at one point been sitting with his head on his hands on the bar, that Mr Scott had become argumentative, and that he had, apparently irresponsibly, changed his mind about the means by which he would travel home.

48 Plainly, as with any relationship that gives rise to a duty of care, the scope of the duty that arises from the relationship between a hotelier who provides alcohol and a patron, may be extended by the particular circumstances of the case: South Tweed Heads Rugby League Football Club v Cole (supra), Ipp A-JA at par97, agreed with by Santow JA and Heydon JA; Cole, Gleeson CJ at par17, and in the same case see also Callinan J at par131.

49 For some time proximity has been rejected as a satisfactory tool for determining whether a duty of care is owed by one party to another: Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2003) 216 CLR 515, Gleeson CJ, Gummow, Hayne and Heydon JJ at par18 and Imbree v McNeilly [2008] HCA 40; (2008) 82 ALJR 1374, Gummow, Hayne and Kiefel JJ at par41. This rejection of proximity has not however diminished the significance that is placed on the relationship between the relevant parties. In Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1, Priestley JA at 8, having cited the comment, "No generalisation can solve the problem upon what basis the courts will hold that a duty of care exists", from Fleming, The Law of Torts, 9th ed, 1998 Law Book Co Ltd at 151, went on to observe that:

"Courts nevertheless decide, in case after case, whether or not a duty of care exists in new situations. Consideration of all the cases of authority to date leads me to the view that the position in Australia, at least in May 1998, has returned to (or recognised the continuing applicability of) what it was immediately after the decision in Donoghue v Stevenson; that is, that the courts make decisions by first asking the question 'is the relationship between plaintiff and defendant in the instant case so close that a duty arose?' and then answering 'yes' or 'no' in light of the court's own experience-based judgment."

My review of the authorities indicates that this observation remains apposite. It was noted in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 by Gummow J at par198 in a passage in which his Honour said:

"The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties."

Priestly JA's observation was also cited with some favour in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 by Kirby J at pars241 to 242. In the same case at pars95, 96 and 99, McHugh J focused on the importance of the relationship between the parties in establishing the existence and scope of a duty of care, and Gummow and Hayne JJ at par145 said:

"However, the co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised.

In the same vein, in Road Traffic Authority of New South Wales v Dederer (supra), Gummow J said at par43:

"... duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question."

50 Whilst an aspect of the relationship in this case between the respondents and Mr Scott was that which is common as between a hotelier who sells alcohol and a patron of the hotel, this was but one aspect of the relationship between Mr Scott and Mr Kirkpatrick and, through him, the hotel. Other key aspects of their relationship included Mr Kirkpatrick's involvement in the arrangements made by Mr Scott to get home after he finished drinking at the hotel that night, that is, that his wife would be telephoned to collect him. Patently this arrangement was made so that Mr Scott would not ride the motor cycle home whilst affected by alcohol. To that end Mr Kirkpatrick assisted Mr Scott to put the motor cycle he had ridden to the hotel in a locked storeroom, the key to which was retained by Mr Kirkpatrick, and Mr Kirkpatrick received the keys to the motor cycle from Mr Scott and placed them in the hotel's petty cash tin. By doing as he did, Mr Kirkpatrick took on a role in relation to the means by which Mr Scott was to leave the hotel that night that went way beyond the normal relationship between a hotelier selling alcohol and a patron.

51 The determination of the existence and scope of the duty of care that arises from a particular relationship is informed by identifying the nature of the harm or damage that underpins the claim in question: Cole, Gleeson CJ at par1; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, Gleeson CJ at par14; and Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, Brennan J at 487. The identification of the harm, in turn informs the identification of the risk and the content of the duty, although as to the latter "one thing is fundamental: while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care": Road and Traffic Authority of New South Wales v Dederer (supra), Gummow J at par49. See also Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 where McHugh J, at par25, observed that "... the duty in negligence is generally described as a duty to take reasonable care."

52 The harm suffered by Shane Scott was personal injury resulting in death. This was a consequence of him riding a motor cycle from the hotel when affected by alcohol. It is notorious that a person who is affected by alcohol is at risk of suffering injury if they drive a motor vehicle: Cole (supra) at pars10, 16 and 25; and even more so if they ride a motor cycle in that condition. In Cole, at par16, Gleeson CJ, having referred to a provision in the Registered Clubs Act 1976 (NSW), s44A, which made it an offence to supply liquor to an intoxicated person, said:

"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."

53 In the circumstances of this case, I hold that the duty of care imposed on Mr Kirkpatrick and, through him, the hotel, was to take reasonable care to avoid Mr Scott riding the motor cycle from the hotel whilst intoxicated. In the context of this case, I intend "intoxicated" to mean, so affected by alcohol as to have a reduced capacity to safely ride a motor cycle.

54 The question of whether a duty of care has been breached must be addressed in accordance with Wyong Shire Council v Shirt (supra) at 47 - 48, and see New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486. I conclude that a reasonable person in the position of Mr Kirkpatrick would have foreseen that if he failed to do something to deflect Mr Scott from riding the motor cycle from the hotel that night, there was a risk that Mr Scott would suffer injury and that risk was not far-fetched or fanciful.

55 As to what a reasonable person in the circumstances of Mr Kirkpatrick would have done in response to that risk, I first address the proposition that he should have telephoned Mr Scott's wife and requested her to drive to the hotel and collect him. Mr Kirkpatrick was well aware that Mr Scott had put the motor cycle away and had arranged to be collected by his wife. It is against the background of that arrangement that Mr Kirkpatrick continued to serve alcohol to Mr Scott and, in my view, in the light of that arrangement, no complaint can be made about the amount of alcohol served. The situation would be otherwise if the arrangement had been that Mr Scott was to ride home on the motor cycle. Significantly, it was at a time when Mr Kirkpatrick's understanding was that Mr Scott was to be collected by his wife that Mr Kirkpatrick decided that Mr Scott had had too much to drink. Mr Kirkpatrick had seen Mr Scott with his head on his hands on the bar, and had observed him to be argumentative. Having reached the conclusion that Mr Scott had had enough to drink and should go home, Mr Kirkpatrick told him so and enquired whether he should telephone Mr Scott's wife. In response Mr Scott said, "If I want you to ring my fuckin wife I'd fuckin ask ya". After a period of about 45 minutes during part of which Mr Scott went outside the hotel, Mr Scott approached Mr Kirkpatrick and asked for the motor cycle. The irresponsibility of this request must have compounded Mr Kirkpatrick's concern about the level of Mr Scott's intoxication. At this point I conclude that a reasonable person in the position of Mr Kirkpatrick would have responded by doing what he reasonably could to avoid Mr Scott riding the motor cycle home. A reasonable response that Mr Kirkpatrick failed to make was to again offer to telephone Mr Scott's wife. If that offer had received a negative response, Mr Kirkpatrick was in any event in a position to delay Mr Scott's departure, telephone Mrs Scott and request her to collect her husband. As to delaying Mr Scott's departure, it is to be remembered that Mr Kirkpatrick had the keys to the storeroom where the motor cycle had been locked away, and Mr Kirkpatrick had the keys to the motor cycle. It would have been easy to stall Mr Scott. I agree with the learned trial judge's finding that it would have been reasonable and easy for Mr Kirkpatrick to telephone Mrs Scott, if necessary against Mr Scott's wishes and without his knowledge, and had Mr Kirkpatrick done so, this would have obviated the risk. Mr Kirkpatrick knew it had been arranged that Mrs Scott would be telephoned to collect her husband, so there was no reason for him to consider there would be any problem about communicating that request to her and obtaining a positive response. Mr Kirkpatrick knew the Scotts resided a relatively short distance away on the Prosser River. Mrs Scott was available on a home telephone and a mobile telephone. Simple enquiries would have provided Mr Kirkpatrick with one of the required telephone numbers. Mrs Scott was not only available but anxious to drive to collect her husband. She gave evidence that she had been worrying about his whereabouts, and had driven to the hotel looking for her bike. As the bike had been locked away, she did not realise that her husband was inside the hotel.

56 Returning to the question of whether a reasonable person in Mr Kirkpatrick's position would have telephoned Mr Scott's wife, it is to be remembered that the touchstone of liability for negligence remains the reasonableness of the conduct of a defendant: Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, Gummow and Kirby JJ at par195, McHugh J at par113, and Callinan J at par331. As to Mr Kirkpatrick's experience in the hotel trade and the telephoning of wives to collect patrons, he gave the following evidence. He grew up in the hotel trade, his father owned and ran the "top pub" at Penguin and his uncle was a hotelier. From the age of 16 until the time of Mr Scott's decease, save for three years, Mr Kirkpatrick worked in the hotel trade. He agreed that "many, many times", at the Tandara Hotel and the Penguin Hotel he had rung the wife of a patron and said words to the effect of "Your husband's here, he's been abusive to me, can you sort him out?", and that "time after time" he had made telephone calls to the effect of "come and collect so and so, he's a handful". There was nothing unusual about telephoning the wife of a patron and requesting her to collect her husband from the hotel and, in the circumstances of this case, I conclude that this was the reasonable thing to do. The failure to do so in this instance breached the duty of care owed to Mr Scott.

57 It is also asserted that an action that would have been taken by a reasonable person to avoid the risk constituted by Mr Scott riding home that night was to refuse to provide him access to the motor cycle. The reasonableness of this course is not solely dependent on the legal rights and obligations of Mr Kirkpatrick and Mr Scott in relation to the cycle. I am inclined to the view of Tennent J that it is implausible to suggest that, at the time, either of the men addressed this question. The issue is one of reasonableness not legality. Reasonableness may require a person to act in a manner which is known to be unlawful, for example to drive whilst unlicensed or disqualified in order to save another. I am not saying that the known or suspected illegality of an action is not a consideration to be taken into account when assessing its reasonableness. Illegality, or suspected illegality, is, however, but one factor and is not decisive. I am also not suggesting that Mr Kirkpatrick should have refused to return the motor cycle at all costs. It would, however, have been reasonable for him to have manifested some resistance to the return of the motor cycle. A response to the effect that he would release the motor cycle upon checking with Mrs Scott that she was content that Mr Scott ride her motor cycle home in the state that he was in would not have been inappropriate. Had Mr Scott responded to any resistance with the threat of violence, it may well have been reasonable to have given way. I am not, however, satisfied that if Mr Kirkpatrick had resisted providing the motor cycle to Mr Scott he would have been met with the threat of violence. It was not necessary for Mr Kirkpatrick to do anything, let alone manhandle Mr Scott, in order to deny him access to the motor cycle which was locked away in a storeroom. On balance I conclude that had Mr Kirkpatrick done no more than was reasonable in resisting Mr Scott's request for the motor cycle, Mr Scott's departure on the motor cycle would have been avoided. Again I am of the view that this failure breached the duty of care owed to Mr Scott. I am also satisfied that the breaches to which I have referred caused, in the relevant sense, that which occurred. As to the other alleged breaches such as failing to telephone the police or a taxi, and failing to offer or arrange a lift, I discern no error in the learned trial judge's findings. In my view, it is unlikely that any of these matters alone would have avoided that which occurred.

58 I would uphold both appeals, set aside the judgments entered in favour of the respondents and hear the parties as to the further orders that should be made.

SANDRA SCOTT v C. A. L. NO 14 T/AS TANDARA MOTOR INN

(ACN NO 009 504 081) MICHAEL ANDREW KIRKPATRICK

MOTOR ACCIDENTS INSURANCE BOARD v C. A. L. NO 14

59 On the night of 24 January 2002, Shane Scott went to the Tandara Motor Inn in Triabunna for a drink after work. He remained there for about three hours, consuming alcohol. He left the motor inn on his motor bike to ride to his home in Orford. As he approached the Prosser River bridge, he lost control of his bike, collided with the bridge and was killed. His widow, Sandra Scott, sued the owner and licensee of the motor inn, alleging they owed her husband a duty of care. The Motor Accidents Insurance Board sued the same parties to recover benefits it had paid out arising from Mr Scott's death. As a consequence of a finding that there was no actionable negligence on the part of the defendants, judgment was entered for them against Mrs Scott and the MAIB. Mrs Scott and the MAIB have appealed. The grounds of their appeals are the same.

60 At the time of his death, Mr Scott had a blood alcohol level of .253. At trial, Mrs Scott and the MAIB asserted that the defendants owed a duty of care to Mr Scott arising out of the service to him of alcohol while he was at the motor inn, and then facilitating his use of his motor bike to drive away from the inn, making no attempt to stop him doing so. The learned trial judge made findings of fact and these were not challenged on appeal.

61 The principal issue arising on this appeal is the nature of the duty, if any, owed by the owner and/or licensee of the motor inn to Mr Scott. There is no suggestion that the positions of the owner and licensee are different. For the purpose of these appeals, I have assumed that a finding that Mr Kirkpatrick owed Mr Scott a duty of care and that he breached it will result in both appeals being upheld.

The nature of the duty, if any, owed by the owner and/or licensee of the motor inn to Mr Scott

62 The learned trial judge identified that this case raised 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". In determining that there was no duty in the present case, Mrs Scott asserted that the learned trial judge erred (ground 1 in the notice of appeal).

63 The learned trial judge, commencing at par25, referred to the decision of the High Court in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469. That was an appeal from a decision of the New South Wales Court of Appeal in which there was a unanimous decision to the effect that the licensed club in that matter did not owe a duty of care to the particular intoxicated patron. The appeal to the High Court was ultimately unsuccessful, with members of the court expressing different views about the nature of any duty which might exist. His Honour quoted some of these views and then canvassed some other decisions on the topic, including one from Canada. He then said at par35:

"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."

He then concluded that the New South Wales Court of Appeal decision in Cole (South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113) was 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 a customer's own intoxication." He went on to say that it followed 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." (my emphasis). The learned trial judge referred to a passage in the judgment of Ipp A-JA in Cole at 146, and then identified some circumstances which might be considered to be exceptional. He then determined by reference to certain facts that this matter did not fall outside the general rule.

64 Counsel for Mrs Scott emphasised, relying on the passage from Ipp A-JA's judgment quoted by the learned trial judge at par36, and from a further passage in the same judgment, that the proposition extracted from that case was a general one which permitted exceptions which should not be confined. He submitted that there were factors in this case which made it exceptional, and that in those circumstances the learned trial judge made an error in determining otherwise. In particular, counsel for Mrs Scott submitted that the licensee, Mr Kirkpatrick, controlled the quantity of alcohol served to Mr Scott, his egress from the hotel and the means of transport he used. These were, he argued, factors central to this case which in part underscored why Mrs Cole did not succeed in her action.

65 The learned trial judge identified at par37 that it might be reasonable to make exceptions to the general rule in Cole in certain cases. All of the exceptions he referred to related to questions of the capacity of the person to whom it was suggested a duty might be owed. Counsel for the MAIB submitted that there were other factors to be considered in determining whether a duty of care existed in a particular case. Counsel for Mrs Scott identified these factors in his submissions as proximity, forseeability and control.

66 McHugh J said in Graham Barclay Oysters P/L v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 583:

"There was simply no relationship between the Council and oyster consumers sufficient to create a duty of care. This Court no longer sees proximity as the criterion of a duty of care. But no duty of care can arise unless the relationship between the parties is one of neighbourhood in Lord Atkin's sense as stated in Donoghue v Stevenson ([1932] AC 562 at 580). To create a duty, the relationship between the public authority and persons affected by the conduct of the authority must be 'so closely and directly affected by [its] act [or omission] that [it] ought reasonably to have them in contemplation as being so affected' (Donoghue (supra) at 580) when it directs its mind to the relevant conduct in question. In considering whether it should exercise its powers over pollution, the Council was no more concerned with oyster consumers than any other section of the public or individual. There was no close and direct relationship between oyster consumers and the Council such that it had a duty to take care for the safety of each and every one of them."

67 In Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 330, Gleeson CJ addressed the same issue when he said:

"However, in the context of the law of negligence, carelessness involves a failure to conform to a legal obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned. A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages?"

68 It is not, in my view, simply the level of incapacity of Mr Scott as he sought out his motor bike which ought to be considered for the purpose of determining whether the circumstances of this case give rise to a duty of care. It is all the circumstances of the case, which include the arrangement about the bike and how that came to be, which should be considered.

69 I do not propose to deal with the facts in any detail because they are well summarised in the reasons of Crawford CJ. There can be no doubt that Mr Scott was under the influence of alcohol to a significant degree when he left the motor inn, that his capacity to drive would have thereby been affected, and that his level of intoxication contributed to the accident which killed him. There was evidence from two people about Mr Scott's manner of driving as and after he left the motor inn. One of those was Mrs Mallinson who saw Mr Scott apparently "fishtail" as he drove off from the motor inn. The other was Mr Heald. At about 8.30 pm, he drove across the Prosser River bridge heading towards Triabunna. He crossed the bridge and was negotiating the right hand bend after it. As he did so, a motor bike came towards him from the opposite direction. He said the bike was going "too fast" and it travelled past "having gone very, very close to hitting the driver's side door of my car." He believed the bike was on the centre line. He looked in his side mirror because he wasn't sure the bike would stay upright. He did not see any accident and kept going. When he returned maybe half an hour or so later, he saw the accident and assumed it was the bike he saw. The likelihood is that it was.

70 While it is obvious that Mr Scott's blood alcohol level was beyond the limit at which he should have legally driven, the evidence of these witnesses suggests a level of lack of control, but not such a complete lack of control, as would suggest an inability to drive at all. This view is reinforced by the fact that Mr Scott was apparently able to ride his bike from the motor inn to just before the bridge at Orford.

71 Counsel for Mrs Scott submitted that at the point just before Mr Scott commenced driving, there was an overwhelming inference that he was in a vulnerable position and at risk, and that his decision to drive was irrational and made at a time when he was so drunk he had been refused service. Descriptions of a person as "irrational" or "drunk" are very subjective, particularly in situations where there are no or few objective indicators. Some people, despite having consumed high levels of alcohol, do not exhibit the more common obvious signs of drunkenness. They appear to be able to function relatively normally. That is not to say their capacity to drive is not affected. It is simply that, before they begin to drive, their level of intoxication might not be obvious to others. In this case, the evidence of a number of witnesses was there were no obvious signs of intoxication. This is despite the fact that we know that Mr Scott's blood alcohol level was high and legally he should not have driven. However, there can be no doubt, based simply on what he served Mr Scott, that Mr Kirkpatrick must have known, when he eventually refused service, that Mr Scott was over the legal limit to drive, and should not have been doing so.

72 Mr Kirkpatrick had agreed that Mr Scott could store the motor bike in the plant room at a time of the rumour about the breathalyser in Orford. At the point when later Mr Scott asked for the keys to the motor bike, Mr Kirkpatrick knew Mr Scott had not rung his wife, was unlikely to do so and intended to drive. Mr Scott had been verbally aggressive to Mr Kirkpatrick, but there was no suggestion on the evidence that he had in any way been physically aggressive or that he was likely to be. The keys were asked for, they were handed over and Mr Kirkpatrick unlocked the plant room and facilitated the removal of the bike.

73 Much was made of the legal position of Mr Kirkpatrick and Mr Scott in relation to the bike. That is, could Mr Kirkpatrick have refused to hand the bike over and, had he done so, could Mr Scott have used forced to recover it? However, it is implausible to suggest that either of the men gave any thought at all to those issues. They have, with respect, been raised in hindsight to justify what actually happened. The reality of the situation was the bike was locked in a room to which Mr Scott had no access. He could only access the bike and the keys to it with Mr Kirkpatrick's co-operation and assistance. Mr Kirkpatrick made a conscious decision to hand over both the bike and the keys knowing Mr Scott was inebriated and having stored his bike to protect against the eventuality of Mr Scott driving in that condition. He chose in the end not to take any step at all to prevent that eventuality. There were clearly steps he could have taken. He could simply have refused to hand over the bike and rung Mr Scott's wife or even taken him home himself. This was a small community, Mr Scott was a regular customer in the sense he was afforded credit, and Mr Kirkpatrick conceded he had done that sort of thing before when involved with a hotel in another small community.

74 Other patrons at the motor inn offered Mr Scott a lift, which he refused. While any offer made by Mr Kirkpatrick may also have been refused, he made no offer and was in a position of control as far as the bike was concerned. In Cole, the staff of the licensed club offered to transport the intoxicated patron home. Further, she was refused service long before she left. If she consumed alcohol thereafter, it was presumed she was provided with it by persons other than staff.

75 I am of the view that the circumstances of this case are very different from those in Cole. The motor inn was in a small community, the number of patrons present on the night was relatively small, Mr Scott was a known customer who lived nearby, Mr Scott had requested Mr Kirkpatrick to lock his bike away to prevent Mr Scott driving in circumstances where he might be breathalysed, Mr Kirkpatrick had thereafter continued to serve Mr Scott alcohol, Mr Kirkpatrick knew Mr Scott intended to drive rather than ring his wife, and there was no evidence Mr Kirkpatrick was under any sort of threat if he refused to hand the bike over.

76 In all the circumstances of this case, I am of the view that Mr Kirkpatrick did indeed owe a duty of care to Mr Scott, once he had taken possession of his motor bike, not to return it to him such that he could drive, and that he breached that duty by doing so. In that situation, grounds 1 to 3 of the notices of appeal must succeed. As to grounds 4 to 6 of the notices of appeal, having regard to the comments I have made about these issues and the ultimate conclusion I have reached, I find it unnecessary to specifically deal with them.

77 I would uphold both appeals and set aside the judgments entered against both defendants.