Individual responsibility upheld at long last

Blame for drunken folly falls on drinkers in High Court judgment

THE High Court has dramatically shifted the responsibility for drunken actions on to the individual, ruling that the nation's publicans have no general duty of care to protect patrons from the consequences of getting drunk.

Hailed as a victory for common sense, the country's highest court yesterday tilted responsibility for the safety of drunken patrons towards "the drinker, rather than the seller of drink". Without dissent, five judges overturned a decision of the full bench of Tasmania's Supreme Court that found a publican who returned motorcycle keys to a drunken patron, who then died in a crash, had failed in a duty of care.

Three of the judges opted to make a more detailed explanation of their decision to "avoid repetition" of such cases and to warn against "interfering paternalism". They ruled that outside exceptional cases, hotel owners and licensees "owe no general duty of care at common law to customers ... (requiring) them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume".

"That conclusion is correct because the opposite view would create enormous difficulties ... relating to customer autonomy and coherence with legal norms," ruled justices Gummow, Heydon and Crennan. "Expressions like 'intoxication', 'inebriation' and 'drunkenness' are difficult to both define and to apply. "The fact that legislation compels publicans not to serve customers who are apparently drunk does not make the introduction of a civil duty of care defined by reference to those expressions any more workable or attractive."

Public health experts said the decision was "immensely worrying" and could undermine responsible service of alcohol.

The publican at the centre of the case, Michael Kirkpatrick, said he was "over the moon" at the decision. The Australian Hotels Association cautioned against patrons seeing the judgment as a green light to "get plastered" at licensed venues. But the AHA and individual publicans hailed the ruling as sending a strong warning to drinkers to take responsibility for their own actions.

Sydney University professor of public health Simon Chapman said yesterday's legal decisions "will effectively mean that publicans will seek to reduce costs and reduce security". "It reveals the whole pretence of responsible service of alcohol as farcical, to say the least," Professor Chapman said.


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