|
More
Indications That The Liability Tide Is Turning
The plaintiff commenced proceedings against the owner of the
Bargo Hotel and the licensee and managers of the Hotel. Relevant to
the existence and scope of the duty allegedly owed by the defendants
were allegations of breach of duty of care in that, according to the
plaintiff she was lent money by the Hotel that she used to consume a
large amount of alcohol.
The plaintiff had consumed alcohol at five places on the day
of the accident. She had been drinking in the morning. She was at
the Hotel between
1.30 pm and
3.00 pm. She interrupted her drinking at about 3.00 pm to collect her
daughter from school. She then drank at a bowling club between
4.00 pm and
6.00 pm, at the Hotel between 6.00 pm and 7.00 pm and finally, at
about 7.45 pm at the home of her mother-in-law, who saw her open a can
of beer.
The plaintiff conceded in evidence that she understood the
dangers of drinking and driving and the risk she posed to herself and
others. The accident occurred about two kilometres from her
mother-in-law’s house on the way home.
Shortly after arriving at the hotel, the plaintiff borrowed
$50 from the manager of the Hotel. The Court inferred that the
plaintiff used it to buy two or three drinks at the Hotel. |
The trial judge concluded that the plaintiff was noticeably affected by alcohol between the period 6.00 pm and 7.30 pm. However, His Honour did not accept the plaintiff consumed six to eight drinks during this period because of the opinions expressed by the expert pharmacologists that, had she done so, she would have been barely able to walk, let along drive a car. Further, His Honour was not prepared to conclude that when the plaintiff left the Hotel “it must have been obvious” that she was going to drive her own car, particularly as she would be seen leaving the Hotel in the company of another person. The plaintiff gave evidence that she drove when drunk and that she knew that, when she was doing that, she was running a risk of injuring herself or others. Accordingly, His Honour held that, even if the Hotel staff knew that she was proposing to drive, this foreclosed any argument that they would have succeeded in persuading her not to drive that evening. His Honour did not believe that either defendant had a duty to protect the plaintiff from the consequences of her own inebriation but, if they did, he did not think that the plaintiff’s inebriation had been proved to have reached the stage where reasonable steps should have been taken for her safety. He was not satisfied that she had reached that stage of intoxication where she no longer had the use of her physical or intellectual faculties such that the Hotel staff were guilty of a breach of the Liquor Act by supplying her with liquor. In conclusion, His Honour stated that the law does not recognize a duty of care to protect person from harm caused by them becoming intoxicated as a consequence of a “deliberate and voluntary decision” by them to drink to excess.
|
