South Tweed Heads Rugby League Football Club Limited v Cole & 1 Or

South Tweed Heads Rugby League Football Club Limited v Cole & 1 Or - [2002] NSWCA 205 - NSWCA 2002 case summary — Zoe

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Friday 12 July 2002 SOUTH TWEED HEADS RUGBY LEAGUE FOOTBALL CLUB LIMITED v ROSELLIE JONNELL COLE & 1 OR Judgment 1 HEYDON JA: I agree with Ipp AJA. 2 Though the general questions relating to duty discussed in his reasons for judgment were not fully argued, and though their resolution is not crucial to the outcome of this case, it is convenient, in examining the case as a whole, to take into account those questions. 3 In Sullivan v Moody (2001) 183 ALR 404 at [42] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said: "the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms." 4 Ipp AJA has identified several factors pointing decisively against the recognition of a duty of care owed by publicans not to serve customers whom they know will become or have become intoxicated in order to prevent the customers causing injury to themselves. 5 Underlying those factors are two matters of particular significance both for potential plaintiffs and for potential defendants. 6 One is that if the duty existed it might call for constant surveillance and investigation by publicans of the condition of customers. That process of surveillance and investigation might require publicans to direct occasional oral inquiries to customers. Inquiries of this kind would ordinarily be regarded as impertinent and invasive of privacy. Quite apart from the inflammatory effect of these activities on publican-customer relations and on good order in the hotel or club, the impact of these activities on the efficient operation of the businesses of publicans would "contravene their freedom of action in a gross manner". 7 The other significant matter is that if a customer reached a state of intoxication requiring that no further alcohol be served and the customer decided to depart, recognition of the duty of care in question might oblige publicans to restrain customers from departing until some guarantee of their safety after departure existed. The plaintiff's arguments in this case repeatedly stressed the proposition that the club was at fault in permitting the plaintiff to leave without ensuring that it was safe for her to do so. How are customers to be lawfully restrained? If customers are restrained by a threat of force, prima facie the torts of false imprisonment and of assault will have been committed. If actual force is used to restrain customers, prima facie the tort of battery will have been committed as well as the tort of false imprisonment. Further, the use of actual force can be a criminal offence: Crimes Act 1900, ss 59 and 61. It is a defence to these torts to prove lawful justification - reasonable and probable cause. However, the constitutional significance of the torts in question in protecting the liberties of citizens - they create, after all, important limitations on police power - means that "lawful justifications" should not lightly be found independently of legislative sanction even outside the immediate police context. Subsections (1) and (3) of s 67A(1) of the Registered Clubs Act 1976 make it lawful for the secretary or an employee of a registered club to use whatever reasonable force is necessary to "turn out" of a club intoxicated persons. But the legislation says nothing about using reasonable force to keep intoxicated persons in pending the appearance of some guarantee for their safety after departure. In short, if the tort of negligence were extended as far as the plaintiff submitted, it would "subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms." 8 SANTOW JA: I agree with Ipp AJA and the additional observations of Heydon JA. I wish only to add some brief observations of my own. 9 I concur in the conclusion that no duty of care is owed by the licensee of club premises to an adult person who is served alcohol by that licensee when that person is, or thereby becomes intoxicated and who subsequently suffers injury contributed to by that intoxication. That conclusion is subject to the caveat expressed by Ipp AJA as follows: "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 Ms Cole's case was not put on this basis and it is not necessary to deal with the issue." 10 That conclusion leads necessarily to the success of the Appellant licensee in its appeal. However, that result also necessarily follows from the reversal by this Court of certain of the trial judge's findings of fact, based on appealable error of the kind which this Court may correct, though with the constraint which recognises the trial judge's advantage. In particular this Court has concluded:

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(d) that in any event, the Appellant Club's offer of safe transport did discharge any duty that the Appellant Club might have had to take reasonable steps for the First Respondent's safety, were such duty to have been found, contrary to the conclusion earlier reached. 11 As was said by Spigelman CJ in Desmond v Cullen [2001] NSWCA 238, "[T]he law of torts has never established a firm line identifying when the principle of the volenti ceases to operate and questions on contributory negligence cut in." 12 The maxim volenti non fit injuria not infrequently involves a value judgment; namely, whether by reason of voluntary and knowing assumption of obvious risk, the plaintiff "deserves" to be compensated at all in the circumstances. That value judgment must be part of a reasoning process which has regard to principle rather than mere discretion. The value judgment is to be found in Morris v Murray [1991] 2 QB 6 where it was held that the plaintiff was "undeserving" because his conduct was "extremely foolish". That was said to render him as plaintiff unworthy of compensation. This was given the fact that he, himself drunk, had acted in a reprehensible manner in agreeing to go on a flight in an aircraft knowing that the pilot (the defendant) was so drunk as to be incapable of discharging a normal duty of care. When contributory negligence is found instead, this requires attribution of a percentage liability for that negligence. Though it is expressed in seemingly precise percentages, that determination itself involves a value judgment as to the extent it is reasonable to render liable those who have contributed to the plaintiff's injury. Such a determination must be principled, not arbitrary, but such a value judgment is still part of the process of reasoning. 13 Recent authority in the United Kingdom appears to place a greater emphasis on what is just and reasonable, or fair, in determining novel cases of negligence and causation than the High Court considers appropriate. That emerges from a comparison of Sullivan v Moody (2001) 183 ALR 404 at 414-5 in the joint judgment of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ to Fairchild v Glenhaven Funeral Services Limited [2002] UKHL 22 (20 June 2002), especially Lord Hoffman at [56] to [57], though the differences should not be overstated. In the former the High Court said that: "[t]he question as to what is fair, and just and reasonable, is capable of being misunderstood as an invitation to formulate policy rather than to search for principles. The concept of policy, in this context, is often ill- defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles which must be capable of general application, not discretionary decision making in individual cases"; at 415, para 49.

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But importantly the High Court did not exclude altogether consideration of what is fair or unfair, for in the next passage appears a frank acknowledgment that: "[D]evelopments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is "fair" or "unfair". There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted"; at 416, para 53, emphasis added. 14 The present case can be considered either in terms of a duty of care or in terms of causation. Thus when we conclude that the Club owed to Ms Cole only the ordinary general duty of care owed by an occupier to a lawful entrant, and that the scope of that duty "should not be enlarged to an extent that required the Club to cease serving alcohol to Ms Cole when it knew that it was likely that she would become intoxicated, when she was obviously intoxicated" that rests upon a particular premise. It is that considerations of principle, not merely fairness (though the latter is not irrelevant) do not justify rendering the Club responsible (whether in terms of duty of care or causation) for injury suffered by a patron following the informed and voluntary act of that patron in choosing to purchase liquor from the Club so as to become intoxicated or thereafter to continue to purchase and drink when she was obviously intoxicated. That last proposition is however subject to the caveat earlier stated, in relation to a person so obviously intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, not merely of impaired judgment. 15 There is another important qualification upon that proposition, recognised by Ipp AJA. It is that the situation may be different where injury is caused, not to the intoxicated patron but to a third party injured as a result of that patron's intoxication, though other contributing factors must then be taken into account. 16 It was said in this case that impaired judgment of the intoxicated patron precluded a voluntary choice. But that is to ignore the fact that ordinarily a person, not a minor or mentally enfeebled, knows that if he or she drinks, their judgment will be impaired, and is in control of the decision to get himself or herself drunk unless coerced or tricked into drinking excessively; compare Rong Yao Zhou v Jennifer Mall Restaurant Inc. 534 A.2d 1268 (DC 1987) and see in particular the dissenting judgment of Kern J in Jarrett v Woodward Bros 96-CV-1715 District of Columbia Court of Appeals, (decision handed down 25 May 2000) at 28-9. Otherwise, a person may escape responsibility by deliberately placing themselves in a position when they know their judgment will be impaired. 17 That varying circumstances may lead to different judgments as to whether a duty of care should be imposed is illustrated by Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. There the defendant was held to have a duty in relation to a prisoner under his care and identified as a suicide risk to take reasonable care not to provide him with the opportunity of committing suicide by making use of defects in his cell door. Important in that conclusion is that it was conceded that the defendants had overall responsibility for prisoners in its care, though denying responsibility in the particular circumstances. As Lord Hoffman pointed out in Fairchild (supra) it would be contradictory to hold that volenti or the causal requirements of the tort excluded liability for harm so caused when a duty of care had been found. This is so, though it be accepted that it was the prisoner's intentional and voluntary act, doing deliberately "the very thing which the defendant is under a duty to prevent him doing". 18 Importantly, Lord Hope of Craighead emphasises (Reeves at 12) that "it is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even this will inevitably lead to their own death or injury." 19 Thus whether the result be expressed in terms of the existence or absence of a duty of care, or a chain of causation being broken by the deliberate act of the plaintiff under either the principle of volenti or the principle of novus actus interveniens, the court recognises, as Lord Hoffman put it, "what in ordinary life would normally be regarded as the reasonable limits for attributing blame or responsibility for harm"; at [57]. 20 To return to the present case, those considerations which lead to the conclusion that no duty of care was owed, are not to be found in any unifying principle. The law in negligence still proceeds incrementally, by reference to factors pointing in one direction rather than another. In the present case, those factors include:

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Ms Cole is injured and claims damages for personal injuries 22 At about 6.20 pm on Sunday, 26 June 1994, the first respondent (Ms Cole) was seriously injured when she was struck by a four wheel drive motor vehicle driven by the second respondent (Mrs Lawrence) on Fraser Drive, South Tweed Heads. It is not known precisely what Ms Cole was doing on the roadway at the time, although she was alone and on foot. By reason of her injuries she was unable to recall the circumstances of the collision. 23 Earlier that day, from between 9.00 am and 9.30 am to between 5.30 pm and 6.00 pm, Ms Cole had been in the building and grounds of the South Tweed Heads Rugby League Football Club. The Club is the appellant in these proceedings. 24 The accident occurred about 100 metres north of the Club. The town of Tweed Heads is to the north of the point where the accident occurred. Ms Cole resided in Boyd Street, Tweed Heads. Her place of residence was not within ordinary walking distance of the Club. 25 While at the Club on the day in question, Ms Cole consumed a large amount of intoxicating liquor. She was undoubtedly very drunk when the accident occurred. Within a matter of hours after the accident her blood alcohol concentration was found to be .238 and there was evidence that it would have been slightly higher earlier. To achieve that blood alcohol concentration she would have needed to have consumed 16 standard alcoholic drinks. 26 Ms Cole sued both Mrs Lawrence and the Club for the damages she sustained in consequence of the injuries she suffered in the accident. Her principal complaint against Mrs Lawrence was that she had driven at an excessive speed and without keeping a proper lookout. Her case against the Club was more complex. In summary, Ms Cole contended that the Club was negligent in permitting her to remain, drinking, on its premises when it knew or should have known that she was intoxicated, in continuing to serve her alcohol when it knew or should have known that she was intoxicated, and in allowing her to leave the Club premises in an intoxicated state without providing her with safe and adequate transport facilities.

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The accident on Fraser Drive 33 It was dark at the time of the collision and the night was fine and dry. Mrs Lawrence was driving her vehicle from north to south along Fraser Drive, that is, she was driving from Tweed Heads in the direction of the Club. She was on the correct side of the roadway. Her husband was sitting in the front as a passenger. She had her lights on low beam and she was driving at a speed of about 70 kilometres per hour. The speed limit was 80 kilometres per hour. 34 For about 80 to 100 metres north of the point of impact, Fraser Drive was a straight road. As mentioned, the Club was about 100 metres to the south of the point of impact. From the commencement of the 80 to 100 metres stretch to the Club there were no houses alongside Fraser Drive and there was no street lighting. A police officer described the area as pitch black. 35 There was no footpath on either the eastern or western side of Fraser Drive. On the eastern side, however, that is on Mrs Lawrence's left side as she was travelling south, there was a wide gravel shoulder and a grass verge. The grass area extended to a fence beyond which there was a wide paddock. There was neither a gutter nor a culvert in the area. 36 Immediately prior to the impact, Mrs Lawrence saw part of Ms Cole's face in front of her. She saw no other part of Ms Cole's body. Ms Cole's face was then two to three metres away from the front of the vehicle. Mrs Lawrence said that there was nothing she could do to avoid the collision. 37 Ms Cole was wearing dark clothing, namely, black pants and a dark jumper. Her hair was also dark. Mrs Lawrence was asked whether she observed that Ms Cole had dark clothing. She replied, "I assumed that she had dark clothing, I gathered because I didn't see her and it was all dark, but if she would have had light clothing on I would have seen something because I saw the piece of her face". 38 Mr Olsen, an expert witness called on behalf of Mrs Lawrence, who was not cross-examined, said that the "the useful illumination" of the headlights of Mrs Lawrence's vehicle on low beam was in the order of 30 to 40 metres. Mrs Lawrence agreed in cross-examination that her lights on low beam would illuminate approximately 50 metres ahead of her vehicle. 39 Mr Johnston, an expert witness also called on behalf of Mrs Lawrence, who also was not cross-examined, said: "[T]he recognition distance of objects under low beam headlights on a straight road gives values of 50.4 metres to a nearside object, and 24.8 metres to an offside object. This data relates to a target with a 10% reflectivity factor, i.e. 10% of incident light is reflected." 40 Mr Johnston said that, by reason of Ms Cole's dark clothing and dark hair, she would have "a reflective factor below the assumed 10% value". 41 Hulme J accepted that the recognition distance of nearside objects under low beam headlights on a straight road was 50.4 metres. He made no mention of the recognition distance of offside objects under low beam, but it follows that Mr Johnston's evidence in this respect must be accepted. 42 Generally, the evidence of Mrs Lawrence's experts was that the reaction time to be allowed was 1.5 seconds. Hulme J was unwilling to accept this estimate, saying that this figure was "higher than my general knowledge would suggest". 43 Mr Johnston referred to the "veiling" effect of "the background lighting" emanating from the Club premises to the south of the point of impact. According to him, objects outside the more highly illuminated area would be masked by the veiling influence of that area. He stated: "This has the effect of reducing the contrast of objects in the remainder of the field of view. Therefore, unless the pedestrian was located within the direct line of sight to the brightly lit area in front of the Leagues Club, then this would further reduce the available seen distance under normal low beam headlights to other areas within the field of view".

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And again: "I saw this piece of her face, I could see the light, everything else about her was dark". 50 At most, this evidence indicates that, immediately before the impact, Ms Cole was facing Mrs Lawrence's vehicle, that is, facing north (away from the Club and looking towards Tweed Heads), and was on her feet. 51 To a person stationary at the point of impact and facing north, Mrs Lawrence's vehicle must have been visible for at least 100 metres (that is, the length of the straight section of Fraser Drive to the north of the point of impact). A vehicle travelling at 70 kilometres per hour travels at 19.4 metres per second. Therefore, the vehicle must have been visible to Ms Cole for at least five seconds. It must also have been clearly audible. Yet it seems that she took no avoiding action. When the impact occurred, she was on the roadway in front of Mrs Lawrence's vehicle. 52 I infer that Ms Cole's grossly intoxicated state was the reason for her omission to take precautionary measures. This could be the only explanation for her failure, over a period of five seconds, to avoid the oncoming vehicle. 53 Ms Cole's grossly intoxicated state was also the apparent reason for the fact that, until Mrs Lawrence's oncoming vehicle was two to three metres away, she had her head down and was not even looking ahead at it. This was so despite the vehicle's lights being on and despite the noise it must have been making. 54 Ms Cole's behaviour was so outside the norm in failing to move away from the path of Mrs Lawrence's vehicle that it becomes a matter of total speculation in attempting to establish what she was doing shortly before she was seen by Mrs Lawrence. 55 Applying a process of reasoning based on rational behaviour, it might be inferred that Ms Cole was walking on a verge from south to north towards her home in Tweeds Head. This would be supported by the fact that immediately before the accident she was facing north. But a finding to this effect, in my view, would be unsafe. 56 Ms Cole might have been walking, standing, sitting or lying on the roadway or elsewhere. Initially, she may have been walking on a verge and, shortly before the impact, she may have walked along some circuitous route on or across the roadway. It is not possible to say on which verge she was likely to have walked, and where on the verge. Of course, she may simply have been walking in the middle of the roadway. But she may also have been standing, sitting or lying in some unknown position, and being impelled by some consciousness of peril, become mobile and moved to where Mrs Lawrence saw her. A further possibility is that she may have been standing for some time at the point of impact. She may also have been sitting or lying there and may have stood up at the last moment. Each possibility is open. None is significantly more likely than the other. 57 It follows that it is not possible to know whether, shortly before Ms Cole was seen by Mrs Lawrence, she was directly in front or on the offside or nearside of the vehicle. This is of fundamental importance. As mentioned, the recognition distance of nearside objects under low beam was accepted as being 50.4 metres, and on the evidence the recognition distance of offside objects was 24.8 metres (both being subject to a 10% reflectivity factor). As the onus of proof was upon Ms Cole, the case has to be approached on the basis that she was visible to Mrs Lawrence only for 24.8 metres. This distance, furthermore, has to be reduced having regard to the reduced reflectivity factor applicable. 58 I repeat that a vehicle travelling at 70 kilometres per hour travels at 19.4 metres per second. Thus, assuming that Ms Cole was visible for say 20 metres, even if it is accepted that a reaction time of only one second should be allowed, it would not have been possible for a vehicle travelling at 70 kph to have avoided colliding with her. This is the case even though, as Hulme J found, when Mrs Lawrence saw Ms Cole she was "opposite the left hand end of the vehicle's bull bar". 59 In any event, simply on the basis put by Mr Hislop, I accept that Ms Cole did not establish that had Mrs Lawrence kept a proper look out she would have seen Ms Cole in sufficient time to be able to avoid the collision. That is, the "pitch black" area, the black road, Ms Cole's dark clothing and dark hair, the veiling effect of the lights of the Club behind her, and the remote prospect of pedestrians being at that particular place, combined to set up an acceptable explanation, consistent with keeping a proper look out, for Mrs Lawrence seeing Ms Cole at the last moment. That being so, it was for Ms Cole to lead evidence to show that that explanation should not be accepted. Evidence of that kind was not forthcoming. 60 I do not accept that the speed at which Mrs Lawrence was travelling was excessive. There was no reason to expect pedestrians in the vicinity and Mrs Lawrence's speed was below the legal limit. There was no particular reason for her to slow down to an even lower speed. There was no particular perceivable risk which Mrs Lawrence should have taken into account but did not. She was driving at a modest speed when there was no particular danger observable; driving at that speed with her lights on dim was a reasonable and a proper response to the traffic conditions prevailing at the time: cf Derrick v Cheung (2001) 181 ALR 301 at 304- 305. 61 Underlying the reasoning of the learned Judge is the proposition that, "absent some good reason to the contrary, one is supposed to drive within what one knows to be the limits of visibility and control". In this respect, in Grove v Elphick (1985) 2 MVR 74, Burt CJ (with whom Wallace and Kennedy JJ agreed) said (at 75): "The trial judge appeared to have adopted a principle that a person travelling in the dark must be held to be negligent if he is driving at such a speed that he is not able to pull up safely: that principle rests peacefully in the grave".

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The background circumstances relative to the consumption of intoxicating liquor by Ms Cole at the Club 63 The Club's premises comprised buildings and grounds on which rugby league was played. On Sunday, 26 June 1994, a number of rugby league games were played on the grounds. 64 At the time, the Club was under administration and was keen to promote activities by which it could increase its earnings. One of the ways in which the Club derived income was from the sale of alcohol. The Club conducted a bar within its buildings and sold alcohol to members and guests. Prior to 26 June 1994 it had implemented a program of Sunday morning breakfasts in an attempt to enhance its financial returns. The Club promoted these breakfasts by billboards and internal advertisements. On 26 June 1994 such a Sunday breakfast was held. 65 The breakfast in question comprised bacon and eggs, toast and coffee. In addition, 24 bottles of Spumante were made available free to those attending. About four bottles were placed, opened, on a serving table centrally located. Members and guests helped themselves, usually by taking a glass to the table and filling it there. The Club's employees replenished the table from time to time. 66 The provision of the 24 free Spumante bottles lasted for less than two hours. Hulme J found that the free alcohol did not run out before about 10.30 am. The bar itself was open and patrons could purchase alcohol in the usual way from the Club's employees serving at the bar. 67 There were three employees of the Club serving alcohol that morning and, according to the findings of Hulme J, "another two or three should have come on in the afternoon". 68 About 100 people attended the Sunday breakfast. During the day there appears to have been a fairly constant change in the identity of the persons within the building in which the breakfast was held and where the bar was located. People would come and go as, from time to time, they went from inside the Club to the football fields where rugby league games were played, and returned. At about 12.30 pm, after the "promotions" had ended, there was an exodus of members and "most of them headed off to bowls". At about 1.00 pm there were few people in the bar area. At some time thereafter there appears to have been a considerable increase in the number of patrons within the building. There was evidence that, at about 5.30 pm, when the rugby league games had finished, there were a "couple of hundred" people inside the building. 69 There were a number of poker machines in the building and they were in regular operation. Members and their guests also played Keno and participated in other forms of gambling activities that the Club organised. During the morning and, indeed, as numbers increased in the afternoon, there appears to have been a typically active, boisterous, and frequently changing group of people within the Club, gambling, drinking, and having a lively time. 70 While rugby league was being played, alcoholic drinks (at least some of the time) were sold outside the Club building. The liquor came from the Club premises but was not served by Club employees. Mr Gee QC, senior counsel for the Club, submitted that the serving of alcoholic drinks while games were in progress was the responsibility of one of the sporting bodies affiliated to the Club, and he submitted that that body was an entity different to the Club. Mr Hall QC, senior counsel for Ms Cole, did not contend to the contrary and the appeal was argued on the basis that Mr Gee's submissions were correct. 71 Ms Cole was born on 4 April 1949. For much of her life she lived in New Zealand. She has had a number of occupations. These include working on the railways in a buffet car, working behind the bar in a tavern (where eventually she became function manager of the establishment), working as a hairdresser and managing and owning hairdressing salons. From the nature of at least some of her work she must have observed the effects of alcohol abuse. 72 Ms Cole said that she was a regular social drinker. She agreed that normally she would enjoy "a few social drinks". She would ordinarily not drink in the fashion that she did on the day of the accident. Prior to 26 June 1994 she was in good health. She said that at that stage she was "very fit".

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The evidence of supply to and purchase and consumption of alcoholic drinks by Ms Cole on the day of the accident 73 Ms Cole attended the Club's breakfast on 26 June 1994 with her friends Mr and Mrs Hughes and Mr Tom Watson. She arrived at between about 9.00 am or 9.30 am. 74 The evidence as to how much Ms Cole drank and from where and whom she obtained alcohol was by no means clear. 75 Mrs Hughes said that on the morning in question she drank about eight glasses of Spumante. Ms Cole was drinking throughout this period and she probably consumed no less. 76 In addition to the free Spumante, Mrs Hughes bought a bottle of Spumante from the bar and shared it with Ms Cole. As regards alcohol acquired by Ms Cole that morning after the supply of free Spumante terminated, the following exchange that occurred in the course of Ms Cole's testimony is relevant: "Q. Did you continue to drink after that? A. Yes, I bought bottles of the same brand and product at the bar. Q. How many did you buy can you recall? A. I can recall three incidences. Q. Of buying a bottle? A. Yes. Q. Where did you buy the bottle or bottles of Spumante? A. From the actual bar, it was in the club. Q. Who was serving there? A. The bar person." 77 In assessing the reliability of Ms Cole's evidence that she purchased three bottles of Spumante, regard must be had to the following evidence she gave in cross-examination: "Q. You said in your evidence-in-chief that you purchased you thought three bottles of Spumante? A. I have that in my head, yes. Q. Did you buy them altogether or did you buy them on separate occasions? A. No, Fay and I were taking turns. Q. And buying three bottles each? A. No, I'd buy a bottle, then she would buy a bottle." 78 Later, Ms Cole said that Fay (Mrs Hughes) bought only one bottle. Mrs Hughes' testimony was to the same effect. Ms Cole said that she and Mrs Hughes shared the contents of the bottles they purchased. 79 There would have to be real doubt as to whether Ms Cole did indeed purchase three bottles. If she and Mrs Hughes were taking it in turns to purchase bottles on the basis that Ms Cole would buy a bottle and "then [Mrs Hughes] would buy a bottle" it seems unlikely that Ms Cole would have purchased three bottles. This evidence does however, give rise to the possibility that Ms Cole purchased two bottles (on the basis that she purchased a second after Mrs Hughes had purchased a bottle). This issue was not explored in any depth at the trial. 80 At about midday, Mrs Hughes' husband and Mr Watson indicated that they wished to leave. Mrs Hughes said that at that time she realised that Ms Cole was drunk "because she was carrying on and didn't want to go, arguing with the men". 81 At about 12.20 pm Mr Hughes left with Mr Watson to go to Ms Cole's father's house. Ms Cole still did not wish to leave. According to Mrs Hughes, after the men left "[Ms Cole] just dropped her bundle". At 12.30 pm Mrs Hughes saw Ms Cole with an open full bottle of Spumante. Ms Cole was drinking from the neck of the bottle. Mrs Hughes made no reference to Ms Cole having any other bottles of Spumante with her. 82 Shortly thereafter, Ms Cole went outside the Club building to the football area, taking the bottle with her, drinking as she went. There was no evidence that she took any other bottles with her. 83 Mrs Hughes said that Ms Cole came inside again at about 1.30 pm. She began playing the poker machines or Keno. At that stage, Mrs Hughes again tried to persuade Ms Cole to leave but she refused. Mrs Hughes persisted and Ms Cole replied, "No, I have met friends outside from New Zealand, I'm with them". By then, according to Mrs Hughes, "She was flitting around and dancing, I call it dancing, you know, and her speech was a bit funny". 84 Mrs Hughes said that at 1.45 pm Ms Cole was "absolutely drunk" and by 2.20 pm "totally inebriated," "very joyous and happy," and "an embarrassment". 85 Mrs Hughes' taxi arrived at about 2.20 pm. Mrs Hughes got in, Ms Cole opened the front door, leaned over the seat to the driver, gave him the address to which Mrs Hughes was to be taken, slammed the door and said to Mrs Hughes, "You are on your own, I'm staying with my friends." 86 Ms Cole said that immediately before putting Mrs Hughes into the taxi she "was having very good time". She said, "I think I was possibly intoxicated, I was playing the poker machines, talking to people, having fun". She agreed that she had had a few drinks, had become excited and was thoroughly enjoying herself. 87 Mrs Pringle, the wife of the manager of the Club, was serving drinks behind the bar. At about 3.00 pm Ms Cole came to the bar, asked for a drink and Mrs Pringle told her to go away as she was drunk. She did not serve her any alcohol. 88 Mrs Pringle observed Ms Cole again at about 5.30 pm. She was with a group of men at a table where "they were just mucking around". She agreed that Ms Cole was "grabbing them on their private parts". Ms Cole was loud and her speech was slurred. She was walking unsteadily. According to Mrs Pringle, when she saw Ms Cole earlier at about 3.00 pm, Ms Cole was not as drunk, she was not making advances to men, she was not loud and she was not unsteady on her feet. It is to be noted, however, that Hulme J did not regard Mrs Pringle as an entirely reliable witness. 89 Mr Pringle also saw Ms Cole at about 5.30 pm. By then the rugby games had been completed. He said that at that stage "[s]he was obviously well and truly affected by alcohol". At that time, he said, "[s]he was swaying, she was behaving in a way that wasn't ladylike". He had not seen her earlier. 90 Mr Pringle testified, "she was in the company of gentlemen of Maori or Islander extraction and I think they were trying to take advantage of her quite seriously". He said, "I think there was a bit of fondling going on and touching in various private areas, grabbling". 91 Mr Pringle said that the men with whom Ms Cole was so conducting herself were not drunk. He thought that Ms Cole, however, was "very, very drunk" and he told her so. He said that her speech was obviously affected, she was mumbling and slurring her words. She was being held up by one of the men. 92 Mr Pringle informed Ms Cole that he would not tolerate her behaviour and asked her to leave. He offered her a courtesy bus (which was available to all patrons) and he offered to ring for a taxi. Ms Cole refused both offers in no uncertain terms. According to Mr Pringle, she "verbally abused" him. 93 One of the men in Ms Cole's company said, "leave it with us and we'll look after her". Mr Pringle went on with his business rather than confront her again. Ms Cole and the men in question left the Club within minutes of being told to go by Mr Pringle. The time was then between 5.30 pm and 6.00 pm. The accident occurred at 6.20 pm.

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The factual findings of the trial Judge as to the supply to and consumption of alcohol by Ms Cole 94 As mentioned, Hulme J defined "intoxication" as "a state wherein there is, due to the effects of alcohol or drugs, a loss of self-control or judgment which is more than of minor degree". His Honour used the term in this sense throughout his reasons and, save where I otherwise indicate, I shall adopt the same practice. 95 Hulme J found that "one or more of the staff members of the Club, prior to about 12.20 must have seen [Ms Cole] and … she was to a significant degree intoxicated". It seems to me that his Honour thereby implicitly found that when, at that time, the staff members must have seen Ms Cole, they must have realised that she was intoxicated to a significant degree. 96 His Honour proceeded: "Combined with her evidence that [Ms Cole] was drunk at midday, the evidence of Mrs Hughes that at about 12.30 [Ms Cole] had a full bottle of Spumante leads to the conclusion that [Ms Cole] was served that bottle shortly before that time. Given [Ms Cole's] wont to drink that day, it is in the highest degree unlikely that a full bottle would have remained in that state for long". 97 Hulme J inferred that the Club had sold Ms Cole the bottle she had at 12.30 pm. He found that, on Mrs Hughes' evidence, Ms Cole's state of intoxication was obvious and should have been known to the Club when, "shortly before" 12.30 pm, it sold her the bottle of Spumante. 98 The Judge went on to say: "There is no direct evidence that the [Club] served [Ms Cole] again that day. Mrs Pringle said that sometime between 2 and 3 pm she refused to serve [Ms Cole] and the possibility exists that any alcohol drunk by [Ms Cole] after the 12.30 bottle may have been purchased by her friends or the group she was with. Nevertheless, I think the probability is that [Ms Cole] was served alcohol again. Given her access to the Spumante bought by Ms Hughes - access apparently used - the period of only two hours between about 10.30 when the free drinks ceased and about 12.30 when she was seen with the full bottle is sufficiently short as to make it more likely that she bought a further one rather than two bottles within that time". 99 Hulme J referred to Ms Cole's evidence that she remembered buying three bottles of Spumante after the free Spumante ran out at about 10.30 am. He did not, however, make any express factual findings in this connection. 100 From his judgment as a whole, it appears that Hulme J accepted that Mr Pringle had offered Ms Cole the use of the Club's courtesy bus to take her home and also offered to call a taxi. He also accepted that she refused these offers in abusive terms. 101 It also appears from his judgment as a whole that his Honour accepted that from about 3.00 pm onwards Ms Cole was markedly and obviously intoxicated. He said that her faculties "were substantially impaired by alcohol". When Ms Cole left the Club at about 5.30 pm, she was very drunk and had been drunk long before that time. 102 Hulme J said: "[A]t some time during the morning of 26 June she consciously set out to drink a significant amount or must have realised she was doing so. If she did not set out to achieve a degree of intoxication, at some stage in the morning she must have realised that that was where she was headed or had reached. Yet she continued and later, given by Mrs Hughes at least two occasions to stop, elected not to." 103 His Honour said that there came a time that day "when it may be said that she might have been so drunk as not to know or have a reasonable appreciation of what she was doing". The words "might have been" imply that this was a throw-away comment by the judge and not a factual finding. Mr Hall, while submitting that Ms Cole was very drunk when she eventually left the Club, made no particular point of the remark in question. The fact is that there was no firm finding that, while at the Club, Ms Cole was so drunk as to be utterly incapable of exercising a rational judgment and looking after herself. The appeal was not argued on the basis that she was in such an extreme state. The trial, too, does not seem to have been conducted on that basis. 104 In summary, it seems to me, Hulme J held: (a) On 26 June 1994, Ms Cole voluntarily and deliberately, began drinking when she arrived at the Club and, thereafter, continued so to drink. (b) Prior to about 12.20 pm, she was intoxicated to a significant degree; at about 12.30 pm, her state of intoxication must have been obvious to all.

[55]

He said, further: "There was a sufficient proximity between [Ms Cole] and [the Club] to give rise to a duty of care in and about the serving of alcohol". 106 For these reasons his Honour held: "There was at relevant times a duty owed by the [Club] to [Ms Cole] to take reasonable care in and about the serving of alcohol". 107 Hulme J expanded on this by saying: "The obligation of reasonable care seems to me to involve a refusal of service if it can be seen that the provision of alcohol is certain to, or probably will, lead to intoxication such as I have defined it. A fortiori, when alcohol is supplied to someone who has already reached such a state of intoxication." 108 His Honour posed the question whether there was a breach of the duty he had found and said: "Before this question can be answered in the affirmative, it seems to me that on the facts of this case it must be shown that the [Club] served [Ms Cole] alcohol at a time when it was apparent she was intoxicated, or at least approaching that state". 109 Having found that Ms Cole was obviously intoxicated when the Club sold her the bottle of Spumante at 12.30 pm, the learned judge concluded that the supply of that bottle of Spumante was in breach of the duty of care. 110 To the extent that his Honour found that that the probability was that, after Ms Cole had consumed that bottle of Spumante, the Club served her with alcohol again, it is implicit in his reasons that the Club also thereby breached its duty of care. 111 Hulme J said that Ms Cole "might fairly be assumed to have knowledge herself of the consequence of the ingestion of alcohol" and noted that this was relevant to the question of breach. He said, however, "the state in which [Ms Cole] was in leads to the view that in this case that factor does not provide a sufficient answer to the suggestion of breach". 112 His Honour proceeded: "Any consideration of the question whether the [Club] breached its duty of care to [Ms Cole], as was causative of any damage, must include consideration of the availability of, and Mr Pringle's endeavours to persuade [Ms Cole] to use, the Club's courtesy bus and a taxi cab. Had [Ms Cole] been sober and in full possession of her faculties at the time, it would be hard to argue that a decision not to use these facilities and then walk on the road meant that, vis a viz [Club], the accident was all her own fault and something for which the [Club] bore no responsibility. However [Ms Cole] was not sober. As both common experience indicates may happen, and as Mr Pringle said when asked as to [Ms Cole's] response to the courtesy bus, 'as with most drunks do when you turn the grog off them, they become upset'. Against that experience, the matters referred to … are not sufficient to prevent the [Club's] contribution to [Ms Cole's] intoxication amounting to a breach of its duty of care. Applying the test in Wyong Shire Council v Shirt 146 CLR 4 at 47, it seems to me inescapable that a reasonable man in the position of the [Club] would have foreseen that his conduct - in supplying alcohol to [Ms Cole], someone who could be seen to be intoxicated or who would probably or certainly enter that state on the consumption of that alcohol, involved a risk, or increased risk, of injury to her. It may be accepted that the probability of harm was low, although the magnitude of any harm should it eventuate was liable to be high. There was little, if any, expense, difficulty and inconvenience in taking alleviating action - declining to serve [Ms Cole] once intoxication or any likelihood of it became apparent - and no conflicting responsibilities. The making of a greater profit does not come within that description. In my view a reasonable man's response to the risk would be not to incur it. Thus, in my view the [Club] was in breach of its duty of care to [Ms Cole]." 113 Thus, his Honour did not hold that the Club's duty of care extended to taking reasonable steps to ensure that Ms Cole reached home safely. Rather, he held that the Club had breached its duty of care by selling Ms Cole the 12.30 pm bottle of Spumante when it knew that she was intoxicated, and had committed a like breach when it served her alcohol later in the afternoon. The learned Judge held that those breaches were causative of Ms Cole's injuries, despite the fact that the Club had offered her safe means of getting home - which she refused. 114 In summary, therefore, Hulme J held:

[65]

Ms Cole's state of intoxication when she purchased the 12.30 pm bottle, and the Club's knowledge thereof 116 There was no direct evidence as to the quantity of alcohol that Ms Cole had consumed by the time she purchased the 12.30 pm bottle, although there was evidence from Mrs Hughes that Ms Cole had been drinking Spumante steadily from the time she arrived (between 9.00 am and 9.30 am). 117 Mrs Hughes said that by about midday it was obvious that Ms Cole was intoxicated by reason of the fact that she was "carrying on," arguing with Mr Hughes and Mr Watson and did not want to leave. She was excited, lively, and displayed some lack of inhibition. 118 It was readily open to Hulme J to find that Ms Cole was intoxicated by that time. Whether her state of intoxication was "obvious" (and, in particular, obvious to the Club) is, however, a more difficult matter. 119 In assessing whether the Club knew or should have known when it sold Ms Cole the 12.30 pm bottle that she was intoxicated, regard must be had to whether the Club knew the extent of alcohol she had consumed by then. I shall first deal with this question. 120 Throughout the day, patrons were constantly moving about within the Club building, at times some went out of the building and some returned, people would appear and disappear. There was an air of excitement, members and their guests were eating, drinking and gambling and generally having a happy, lively time and enjoying themselves. 121 I have noted that, during the breakfast, there were about one hundred people present. There were only three staff members on duty at the time. None was said to have known Ms Cole personally. 122 Until the supply of free Spumante terminated (at between 10.30 am to 11.00 am), guests obtained bottles for their tables by collecting them from a centrally located table. They helped themselves. It would hardly have been possible for the Club employees to detect merely from the number of bottles collected for a particular table (had they noticed) how much Spumante an individual person had consumed or was likely to consume. 123 All patrons who had had breakfast that day were sitting (or had been sitting) at tables and, furthermore, the vast majority of patrons who were within the Club building were part of groups. When free Spumante was no longer available, alcohol could be purchased from the bar. Those, such as Ms Cole, wishing to purchase Spumante, were so able to obtain bottles of Spumante (not individual glasses). It would have been difficult if not impossible for the three bar attendants to discern how much of the Spumante bottles purchased was for sharing among members of the groups at the tables or for individual consumption. 124 In these circumstances, in my opinion, it cannot be inferred that at any relevant time prior to 12.30 pm the Club employees knew or should have known how much alcohol Ms Cole had consumed. 125 Thus, until 12.30 pm, the obviousness of Ms Cole's state of intoxication was dependent on the employees observing her "carrying on," arguing with Mr Hughes and Mr Watson about whether she should leave, and her general state of excitement and extroverted behaviour during that period. Only these matters could then have led to a perception that Ms Cole was intoxicated. 126 There was no evidence, however, that any employee observed or would have observed Ms Cole arguing with Mr Hughes and Mr Watson. This argument does not appear to have endured for more than about 20 minutes and may well have been of shorter duration. The issue was not explored at the trial. 127 While it was open to Hulme J to find that a member of the Club staff must have observed Ms Cole "prior to about 12.20", it was simply not possible to say precisely when such observation occurred, and in particular whether it was a few minutes before that time, or half an hour or an hour or more earlier. It is also not possible to say with any degree of precision to what extent Ms Cole was intoxicated, and displayed signs of intoxication, at any particular point of time over the period from 10.00 am to midday or thereabouts. 128 Ms Cole's state of intoxication appears to have increased significantly after 12.30 pm. It was only at about 1.30 pm that she was seen to be "flitting around" and dancing, and it was then that Mrs Hughes observed that her speech was "a bit funny". I have previously stated that Mrs Hughes said that at 1.45 pm Ms Cole was "absolutely drunk" and by 2.20 pm "totally inebriated," "very joyous and happy," and "an embarrassment". The inference from Mrs Hughes' evidence is that Ms Cole's state of intoxication at 2.30 pm was noticeably worse than at 12.30 pm. 129 The difficulties of determining whether a person is intoxicated, and to what degree, when that person manifests behaviour of the kind described are well-known. Some persons become uninhibited and boisterous after consuming very little alcohol; they may be affected by the occasion and other matters more than by alcohol. Others may drink a great deal and become highly intoxicated while remaining immobile and silent. These difficulties of perception would have been increased by the boisterous atmosphere, the large number of patrons and their movement within the Club building on the day. 130 Taking into account the matters to which I have referred, I do not think that it could be said that the evidence is capable of supporting an inference, on a balance of probabilities, that, by 12.30 pm, one or more of the three employees of the Club who were present should have realised, merely from Ms Cole's general excited state and extroverted behaviour, that she was significantly intoxicated. 131 In the circumstances, I accept the submission made on behalf of the Club that his Honour erred in finding that, at the time Ms Cole purchased the 12.30 pm bottle, her state of intoxication (or even near intoxication) was or should have been known to the employees of the Club.

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The supply of alcohol to Ms Cole after 12.30 pm 132 On Mrs Hughes' evidence, Ms Cole was obviously intoxicated by 2.30 pm. I have pointed out that, for this reason, at 3.00 pm Mrs Pringle refused to serve Ms Cole with alcohol. Later, during the course of the afternoon, Ms Cole's behaviour became so extroverted and so beyond the norm that all who saw her would have realised that she was seriously intoxicated. 133 Having regard to Mrs Hughes' testimony, which described a steadily worsening condition over the period of almost two hours from 12.30 pm to 2.20 pm, there is a clear inference that Ms Cole must have continued to drink alcohol after 12.30 pm (and to drink more than what was in the 12.30 pm bottle). Having regard to her deteriorating state after 2.20 pm, she must have continued to drink as the afternoon wore on. 134 The question however is: what was the source of the alcohol then drunk by Ms Cole? 135 Hulme J said that there was no direct evidence that, after the 12.30 pm bottle of Spumante, the Club served alcohol to Ms Cole "again that day". He recognised the possibility that she may have drunk alcohol "purchased by her friends or the group she was with". His Honour found, however, that "the probability is that [Ms Cole] was served alcohol again" (by implication, by the Club). 136 In finding that the probability was that Ms Cole was served alcohol by the Club after the 12.30 pm bottle, Hulme J made no reference to the three bottles of Spumante that Ms Cole said she had purchased. The question is whether, in making this finding, his Honour had regard to those three bottles. 137 I have mentioned the passage in his Honour's reasons where, in referring to the period between 10.30 am and 12.30 pm, he said that it was "more likely that she bought a further one rather than two bottles during this time". The reference to "further" means "additional". The only bottle to which another bottle could have been "additional" is the 12.30 pm bottle. It seems then that Hulme J was intending to convey a finding that between 10.30 am and 12.30 pm Ms Cole bought two bottles from the bar (and not three). 138 There was good reason for a finding that Ms Cole bought only two bottles of Spumante and not three. Ms Cole took it in turns with Mrs Hughes to buy Spumante. Mrs Hughes bought only one bottle. On that basis Ms Cole would only have bought two. 139 The next question is whether the finding that Ms Cole was served alcohol by the Club after 12.30 pm was based on a finding that Ms Cole indeed purchased three bottles and the third was purchased after 12.30 pm. I think the answer to this question has to be in the negative. Firstly, his Honour said nothing expressly to this effect. In fact, as I have mentioned, he made no express findings in regard to the three bottles. Secondly, I have pointed out that there was good reason to find that Ms Cole purchased only two bottles of Spumante in all. Thirdly, Hulme J's statement that there was no direct evidence that, after the 12.30 pm bottle, the Club served alcohol to Ms Cole again, is a very clear indication that he did not accept that, in that period, Ms Cole purchased a third bottle from Club. Fourthly, the tenor of Hulme J's language is indicative of a finding based entirely on inference based on all the circumstances. 140 In drawing the inference that, after the 12.30 pm bottle, Ms Cole purchased alcohol from the Club, Hulme J omitted to take into account the possibility that she went outside in the afternoon and purchased alcohol from persons other than Club employees. Mr Hall referred to evidence that Ms Cole was not interested in rugby league and was not likely to have gone outside to watch the game. But the fact is that she was outside between about 12.30 pm and 2.20 pm where she met friends from New Zealand. One cannot exclude the possibility that she went outside again that afternoon. After all she was later seen in the company of Maori men and it may be that these were her friends from New Zealand who she had earlier met outside the building. It may be that in the afternoon she went out again, met these men once more and returned into the Club building with them. It is simply not possible to ascribe any degree of probability to Ms Cole's movements that afternoon. 141 Likewise, the source of alcohol she acquired that afternoon is a matter of mere speculation. There are at least three possibilities. The first is that Club employees served alcohol to Ms Cole within the building. The second is that she acquired alcohol from others outside the building. The third is that she was provided with alcohol purchased for her inside the building by friends or persons in whose company she was. In my view, there is no reliable basis whereby a greater degree of likelihood can be ascribed to any of the three. 142 Thus, in my opinion, while it was undoubtedly so that, when Ms Cole left the Club at about 5.30 pm, she was very drunk and had been drunk long before that time, the evidence was not capable of establishing on a balance of probabilities that, after the 12.30 pm bottle, she purchased alcohol from the Club or that the Club supplied alcohol to her. 143 The conclusions to which I have come are determinative of the Club's appeal. In my view, the Club's appeal should be upheld on the ground that it was not established that it committed a breach of the duty of care found by Hulme J. Nevertheless, as the issues relating to the scope of the duty of care were touched on in argument, and as the case may be taken further, I shall express my views upon those matters and also upon the consequences of Ms Cole refusing the Club's offer of safe transport.

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Section 67A (5) of the Act provides: "If a police officer is requested by the secretary of a registered club or an employee of the club to turn out or assist in turning out of the premises of the club a person whom the secretary or employee is entitled …. to turn out of the premises, it is the duty of the police officer to comply with the request and the police officer may, for that purpose, enter the premises and use such reasonable degree of force as may be necessary". 147 Ms Cole did not plead or argue that the Club was liable to her for a breach of a statutory duty under the Registered Clubs Act. Mr Hall, however, submitted, in effect, that the Act informed the tortious duty of care owed to Ms Cole by the Club. 148 Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91 is authority for the proposition that legislation similar to the relevant provisions of the Registered Clubs Act does not confer a private right of action for damages for breach thereof as such legislation "is intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by over indulgence or because of youth or mental ill health are at risk from its abuse" and is "enacted in the general public interest, not for the protection of persons who may be injured by the conduct of intoxicated persons" (see at 102). 149 It is to be noted that enforcement of the statutory duty under s 44A rests on the deeming provision contained in s 44A(3). The legislation thereby points up the difficulty in knowing whether a particular person is intoxicated. It is also to be noted that the steps to be taken under s 44A(4) do not include the taking of reasonable steps for the safety of intoxicated persons after they leave the premises. 150 In my view, for the reasons set out in Chordas, the Registered Clubs Act has only marginal relevance to the common law duty of care owed by innkeepers to patrons. At most it tends to support the argument that community values (as evidenced by the Act) might favour imposing a common law duty on the part of an innkeeper, on becoming aware that a customer is likely to become or is intoxicated, to refuse to serve the customer any alcohol.

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The general duty of care owed by the Club to Ms Cole 151 The fact that a person is a lawful entrant upon premises occupied by another establishes a relationship between occupier and entrant which gives rise to a general duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the entrant: Australian Safeways Stores Pty Limited v Zaluzna (1987) 162 CLR 479. 152 This duty ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor (2002) NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises. 153 It is generally accepted that the duty to take reasonable care to avoid a foreseeable risk of injury to invitees, owed by the occupier or person in control of a hotel, restaurant, bar or similar establishment, extends to injuries to patrons caused by tortious or criminal acts of other patrons: Chordas v Bryant (Wellington) Pty Limited; Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1998); Guildford Rugby League Football and Recreational Club Limited v Coad (2001) NSWCA 139. 154 In Oxlade v Gosbridge Pty Limited Mason P said: "It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of an hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such, it encompasses the protection of a patron while he or she is on or departing from the licensed premises." These remarks were aimed at injuries caused by intoxicated patrons to others, not to injuries caused to intoxicated patrons, themselves; that is, by their own voluntary and deliberate conduct in becoming intoxicated. Guildford Rugby League Football and Recreational Club Ltd is to the same effect. 155 In Chordas v Bryant (Wellington) Pty Limited the Full Court of the Federal Court (Davies, Kelly and Neaves JJ) said (at 99): "Particularly in the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause. As we have said, the manager of an hotel, like the manager of other facilities, must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons. However, what is the appropriate course in a particular case obviously depends upon the circumstances of the case."

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In the circumstances, I do not think the statements of Grove J on the extent of an innkeeper's duty of care constitute the ratio decidendi of Desmond v Cullen , and hence this Court is not bound by them. 163 Apart from Desmond v Cullen and Johns v Cosgrove there are no Australian cases to which we were referred, or which from my own researches I have been able to find, that deal with whether the scope of the general duty of care ordinarily imposed on an innkeeper is to be extended in accordance with the views expressed, individually, by Grove J, Derrington J and Hulme J. 164 In considering whether the scope should be so extended, I bear in mind that, in imposing additional duties to take care for the safety of others, the law of negligence must be allowed to develop incrementally and by analogy with established categories: Sutherland Shire Council v Heyman (1985) 157 CLR 424. I also bear in mind that, although, as Spigelman CJ pointed out in Reynolds v Katoomba RSL All Services Club (2001) 53 NSWLR 43 at 48: "in many respects the tort of negligence is the last outpost of the welfare state", the tort of negligence is not a form of social welfare. Fault remains an essential element of the tort of negligence. 165 I agree, with respect, with Spigelman CJ, for the reasons expressed by him, that the Canadian cases are to be regarded with considerable caution. These cases reflect social attitudes that are not necessarily the same as those prevailing in this country: Solomon and Payne, "Alcohol Liability in Canada and Australia: Sell, Serve and be Sued", (1996) 4 TLR 188. 166 The reasoning in Jordan House Limited v Menow and Mayfield Investments Limited v Stewart has given rise in Canada to a new kind of liability for negligence, namely, liability imposed on an innkeeper (or like person) selling alcohol for consumption to an adult purchaser who, in consequence, to the knowledge or constructive knowledge of the innkeeper, becomes intoxicated on the premises. The innkeeper may be held to be negligent even where the act of consuming alcoholic drink is as familiar and as commonplace to the consumer as the most mundane acts of everyday domestic life, where the consumption is voluntary and deliberate, where there is no trap or element of misleading conduct, and where the person best able to assess the effects of the alcohol is the consumer, himself or herself. Liability is imposed even though for an infinite variety of reasons the consumer may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety. According to this doctrine, innkeepers know best, and are required to impose their own authority, judgment and quasi-parental control over the will and desire of those who wish to entertain themselves by consuming their wares. 167 Not only, according to Jordan House and Mayfield, must an innkeeper cease supplying alcohol when patrons are known to be intoxicated. Innkeepers must take reasonable steps to see that their intoxicated patrons get home safely by taking them under their charge or putting them under the charge of responsible persons. 168 The recognition of such a duty must give rise to an infinite variety of difficulties. I shall enumerate some. 169 There is the problem of when an innkeeper will be regarded as knowing that the customer is so intoxicated as to require a refusal to sell alcohol. I have referred to the difficulties of discerning from idiosyncratic, individual behaviour whether a person is drunk or merely excited. I have also referred to the conundrum of the silent and immobile drinker. The question arises whether innkeepers would be duty bound to take steps to verify, constantly, that their patrons are sober. That is, before supplying them with alcohol. The taking of such steps may be an implicit consequence of the deeming provisions of s 44A(3) of the Registered Clubs Act, though even s 44A(3)(c) is premised on "becoming aware" that the person was intoxicated. Such measures, it seems to me, would be an unlikely burden for the common law to impose when even the legislation is so qualified. 170 Then, there is the problem of the customer who is the only intoxicated person amongst a group of patrons. What happens if the sober customers order alcohol and give some to the inebriate? What steps, if any, must the innkeeper take to prevent this from occurring? Must the innkeeper refuse to supply the sober members of the group? Or must he or she obtain undertakings from those who are sober not to give alcohol to the inebriate? And how are the undertakings to be policed? Would an innkeeper, who supplies alcohol to a sober patron, (who, in turn, gives some of the alcohol to a drunken friend), thereby breach a tortious duty to the friend? Allied to this kind of quandary is the difficulties innkeepers would face in guarding against persons who, unbeknown to them, arrive on the premises in an intoxicated state, or having already consumed a fair amount of alcohol. 171 Once the innkeeper notices that a person is intoxicated, what is then to be done? Ask the person to leave (as s 44A(4)(a) of the Act evidently requires)? But if that person leaves and then has an accident because he or she is intoxicated, the innkeeper may still have breached such an extended duty of care. If the person concerned refuses to leave and refuses offers of transport, the position is obscure. If the innkeeper calls the police and the person, in the interim, leaves, is the innkeeper liable for injury if the person leaves in a drunken state? Must the innkeeper detain the person? But by what authority? Without proper authority, a different kind of tort would be committed. If the police arrive, what are they to do? Merely eject the customer? But that would solve nothing. They would surely not be required to take the customer home. Must they make an arrest? The proposition that police must be called to arrest every patron of a bar (or other establishment that serves alcohol) who seems to be intoxicated seems to be so extreme as to be absurd. What that would do to the availability of police in this country to combat more serious crime does not bear thinking about. 172 What if the inebriate indicates that he or she wishes to indulge in some sexual activity with persons who look as if they may take advantage of the vulnerability of the person concerned? This, after all, may have been the situation that arose in this case. Must the innkeeper interfere? Again, by what authority? And what an angry and affronted response interference of that kind would probably evoke. 173 These questions cannot readily be answered. The recognition of such an extended duty is fraught with an infinite variety of practical problems. The innkeeper would be placed in a virtually untenable position. 174 The strength of the conventions on which the rule of law rests will be undermined if, in the course of ordinary daily life, duties are imposed on citizens that are puzzling and uncertain in scope, require impractical measures for compliance, and are contrary to long-standing community values of personal responsibility, self-reliance and, indeed, commonsense. 175 The position in regard to the duty owed by an innkeeper to an intoxicated plaintiff is not entirely dissimilar to that involving a gambling house and a compulsive gambler. There is a significant and obvious difference in that the potential harm to a gambler is financial (and emotional) whereas the potential harm to an intoxicated person is usually physical. In addition, an addiction to gambling may also, perhaps, be regarded in a different qualitative light to the compulsion experienced by a person, already affected by alcohol, to continue drinking. But the underlying principle that prevents the law recognising the existence of a duty in the gambling situation is nevertheless of relevance. The law does not recognise a duty of care "to protect persons from economic loss, where the loss occurs following a deliberate and voluntary act on the part of the person to be protected" (per Spigelman CJ in Reynolds v Katoomba RSL All Services Club at 46). In my opinion, save perhaps in extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by them becoming intoxicated by alcohol following a deliberate and voluntary decision on their part to drink to excess. 176 In a revealing analysis, Spigelman CJ, in Reynolds v Katoomba RSL All Services Club Ltd, drew attention to the "significance of the common law's protection of autonomy of the individual". The Chief Justice referred to powerful statements in support of this principle from courts of the highest authority (see the discussion at 46-48). 177 It is of interest to see how other branches of the law treat intoxication. By intoxication, I do not mean to refer to the state where a person has consumed so much alcohol that "he does not really know what he is doing - that his mind does not go with his deed" (per Fullagar J in Blomley v Ryan (1956) 99 CLR 362 at 401) or that his will has been divorced "from the movements of the body so that they are truly involuntary" (per Barwick CJ in R v O'Connor (1980) 146 CLR 64 at 72). 178 Under the law of contract, "mere drunkenness affords no ground for resisting a suit to enforce a contract" (per Fullagar J in Blomley v Ryan (at 405)). Thus, a person who enters into a contract when intoxicated will not be able to avoid his contractual obligations by seeking recourse to law. Equity will only come to the aid of such a person if there has been, in effect, unconscionable conduct by the other contracting party, either in inducing intoxication or in unfairly taking advantage of his or her condition. Even if one contracting party knows that the other has entered into the contract when seriously affected by drink, the contract will not be susceptible of being set aside on that ground alone, and the sober party will be entitled to claim damages, in law, for breach of the contract. 179 In Blomley v Ryan at 405 Fullagar J said: "…. cases in which an allegation of intoxication is a main feature are approached with great caution by courts of equity. This is, I think, not so much because intoxication is a self-induced state and a reprehensible thing, but rather because it would be dangerous to lend any countenance to the view that a man could escape the obligation of a contract by simply proving that he was 'in liquor' when it was made."

[89]

The learned Chief Justice went on to say at 71 to 72: "The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed, intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged. Intoxication to the stated degree might have rendered an accused less aware of what he was doing or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them. So long as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of so-called specific intent, the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence … If the degree of intoxication produces only those results which I have so far described, that state of intoxication is clearly irrelevant to a consideration of the accused's criminal culpability, certainly if the offence charged does not require that the act charged be done to achieve or to attempt to achieve some specified result." 181 Accordingly, save where a person is so intoxicated that he or she has no will to act or no capacity to form an intent to do an act, an intoxicated person remains criminally responsible for the acts he or she committed in a state of voluntary intoxication. That is so even if the intoxication has led to a change in personality, a warping in will, an alteration in disposition and a weakening in self-control. 182 The recognition that, generally speaking, adult persons must assume responsibility for their own actions while intoxicated (provided that they are sufficiently in control of themselves to be able to exercise their will and to know what they are doing) underlies the treatment of such actions by the law and principles of equity relating to contract and the criminal law. There is no reason why the law relating to negligence should not adopt a similar approach. 183 In my view, an extension of the duty of care to the limits as expanded by Jordan House Ltd v Menow and Mayfield Investments Ltd v Stewart would reflect a discounting of personal responsibility and autonomy to an unacceptable degree. 184 In my view, the appropriate approach should be that laid down in Barrett v Ministry of Defence [1995] 1 WLR 1217. 185 In that case, a naval airman ("the deceased"), aged 30 years, was serving at a shore based establishment of the Royal Navy in Norway. Within the base there were three bars. These were operated by the defendant (the Ministry). Drinking in these bars when off-duty was one of the main recreations of personnel attached to the base.

[93]

His Lordship remarked (at 1224): "It was said that the defendant's control over the environment in which the deceased was serving and the provision of duty-free liquor, coupled with the failure to enforce disciplinary rules and orders, were sufficient factors to render it fair, just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance expressed or implied in the relationship which the party to whom the duty is owed is entitled to place on the other party to make provision for his safety. I can see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount that he can safely consume or to exercise control in his own interest as well as in the interest of others. To dilute self-responsibility and to blame one adult for another's lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far". Beldam LJ held that the defendant was not under a duty to take reasonable care to prevent the deceased from abusing alcohol to the extent he did. His Lordship concluded (at 1225): "Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell short of the standards reasonably to be expected. It did not summon medical assistance and its supervision of him was inadequate". 187 The Appeal Committee of the House of Lords dismissed a petition by the plaintiff for leave to appeal. In England, unlike in Canada, the extension of the general duty of care, as contended for by Ms Cole, remains "an increment too far". 188 In ascribing qualitative values to such concepts as "autonomy", "self-responsibility", and "voluntary and deliberate decision" when applied to persons intoxicated by alcohol, regard must be had to the fact that, as such persons consume alcohol, their judgment and understanding may gradually become impaired and their ability to make a properly informed decision may be lessened. The decision to continue drinking may be voluntary and deliberate, but the minds of the persons affected by alcohol will, to varying degrees, be less well equipped to make that decision. 189 Sometimes, persons while sober, will decide to drink until they are drunk. Often, no such decision will be made and consumption of alcohol will continue thoughtlessly until intoxication results. Sometimes a person may drink without knowing precisely how much he or she has drunk (in R v O'Connor (at 74) Barwick CJ gives the example of "the person who at dinner does not observe the frequency with which the waiter tops up his glass"). On the other hand there are those who accept "that the conduct of a person who voluntarily becomes intoxicated should be regarded as reckless" (see Gibbs J in R v O'Connor (at 91) referring to some of the members of the House of Lords in Reg v Majewski [1977] AC 443). 190 On any scenario, it seems to me, throughout the process of drinking until intoxication results, the drinker, ordinarily, will retain some, though a diminishing, degree of reflexivity, self-perception and self-control. 191 I do not now refer to extreme states of intoxication where the will of the persons intoxicated and their capacity to form an intent have been destroyed. I exclude such persons from the remarks that follow. 192 The principal effects of lesser states of intoxication will be merely to remove self-restraints and inhibitions and to induce excessive self-confidence. But persons so affected will retain some capacity (albeit that it might not be exercised) to be aware, in a general way, of the extent of their sobriety or intoxication at any particular time, and of the consequences of continuing to drink. They will also retain an ability to be able to call a halt to the drinking process. Ordinarily the more experienced the drinker, the more acute the self-perception. Actions taken by persons in this lesser state of intoxication are voluntary and remain their own; they are actions intentionally taken. 193 For the reasons set out in the preceding paragraph, 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. 194 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. 195 In my opinion, the Club owed to Ms Cole only the ordinary general duty of care owed by an occupier to a lawful entrant. The scope of that duty should not be enlarged to an extent that required the Club to cease serving alcohol to Ms Cole when it knew that it was likely that she would become intoxicated, or when she was obviously intoxicated. 196 In my opinion, as a general proposition, considerations of personal responsibility, autonomy, practicality and certainty override those factors such as foreseeability, proximity, control and vulnerability which have persuaded some courts, in similar circumstances, to extend the scope of the general duty of care. 197 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 Ms Cole's case was not put on this basis and it is not necessary to deal with the issue. 198 Nothing said above is intended to apply to the situation where an intoxicated person causes damage to third parties. That is not this case. Different considerations, of which account would have to be taken, would come into play in such a situation.

[94]

The effect of offering Ms Cole safe means of transport. 199 Hulme J held that Mr Pringle's offer to Ms Cole to provide her transport home by way of the Club's courtesy bus or a taxi did not prevent the breach of duty found by his Honour from being causative of her damages. The reasoning underlying this decision was that her decision to refuse the offer was caused by her impaired judgment, brought about by her drunken state, for which the Club was responsible. 200 This approach is entirely consistent with the view of Hulme J that the Club owed Ms Cole a duty to cease serving alcohol to her when it knew that it was likely that she would become intoxicated, or when she was obviously intoxicated. 201 In finding that the Club owed no such duty to Ms Cole, I have concluded that the responsibility for her drunkenness was her own. In my opinion, Ms Cole must bear the consequences for her self-induced state. On the basis of that reasoning, I disagree that the Club is responsible in law for the consequences of her choice in drinking until she was intoxicated. 202 Accordingly, I do not agree that the Club's offer of safe transport did not discharge any duty that the Club might have had to take reasonable steps for Ms Cole's safety. 203 Even though no notice of contention was filed, Mr Hall submitted that once the Club knew that Ms Cole was intoxicated, it owed her a duty of care to take reasonable steps to ensure that she got home safely. This was the duty of care upheld in Jordan House Ltd v Menow and in Mayfield. Hulme J made no comment in this respect and did not find that such a duty existed. 204 For the reasons I have set out above, I consider that the general duty of care owed by innkeepers should not be extended as submitted. 205 In any event, if the duty is to be so extended, it was discharged by the Club. The offers of transport made by Mr Pringle were manifestly reasonable. They were refused in no uncertain terms. The men in whose company Ms Cole was, then offered to take care of her. She, apparently, desired their company and refused to leave. Subsequently, she left voluntarily, apparently with them. In my view, the Club, reasonably, could do no more.

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Cases Cited (14)