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Watson, Penelope --- "You're Not Drunk if you can Lie on the Floor Without Holding on' - Alcohol Server Liability, Duty, Responsibility and the Law of Torts" [2004] JCULawRw 6; (2004) 11 James Cook University Law Review 108



*BA (Hons) (Tas), LLB (UNSW), LLM (Syd); Lecturer, Division of Law, Macquarie University


Tort law is all about loss-shifting and loss-spreading. It is one mechanism for determining whether and when the loss that falls on a given individual will be transferred to others in the community. This transfer to defendants in negligence is achieved primarily through the attribution of fault, or relationships giving rise to strict liability. In most cases, transfer occurs to the community more broadly through ‘an intricate series of economic links’,[2] notably insurance, taxation, and pricing of goods and services. The fundamental issue is where to draw the line between individual and collective responsibility for injury and misfortune.

Federal and state governments around Australia have acted since 2002 to shift a much greater share of the responsibility onto injured plaintiffs, through ‘tort reform’.[3] Underpinning ‘reform’ are financially-driven notions about personal responsibility of the injured. The recent decision of the High Court in Cole v South Tweed Heads Rugby League Football Club,[4] rejecting server liability for injury to an intoxicated patron, is consistent with this. It is part of an identifiably less compassionate and less communitarian trend in the court,[5] at least since Romeo v Conservation Commission of the Northern Territory,[6] requiring plaintiffs to accept greater responsibility for their injuries despite their relative inability to insure or protect themselves against injury and its consequences.

This article analyses the views expressed by the High Court in Cole on questions of autonomy, responsibility and duty of care in the context of alcohol-related injury, and the role of tort law in such circumstances. The legal position in Canada and the United States, countries that have led the common law world in developing alcohol server liability, is contrasted with that in Australia. In Canada and many American states, unlike Australia, servers are held to stringent standards of responsibility, justified in the name of public health and safety. Finally, the article considers the impact of legislation such as the Civil Liability Act 2002 (NSW) on the common law since Cole.

I conclude that both the legislature and the High Court have adopted a distressingly narrow, individualistic approach to injury and duty in the context of intoxication; and that in so doing they have ignored the social implications of their stance. This represents a retrograde step and a missed opportunity for tort law to fulfil its traditional purposes. Attributing some responsibility for alcohol-related injury to those who both benefit from and are in a position to control alcohol abuse, would promote safety, deter irresponsible self-interested conduct, and set meaningful standards of acceptable behaviour. The result could be a much needed cultural and social shift towards more responsible alcohol practices.


Overuse and abuse of alcohol is a social and public health problem of major proportions in Australia, which has enormous cost implications for the health system, emergency services, policing and the criminal justice system, and society generally. It derives from a cultural context which views excessive alcohol consumption as a sign of masculinity and maturity, and is part of the Australian national myth[7] going as far back as the First Fleet, the Rum Corps and the Rum Rebellion. In 2004 over 80 per cent of the Australian population aged 14 years or over consumed alcohol in the previous 12 months, with 11 per cent of males and six per cent of females drinking daily. Ten percent of males and nine per cent of females drank alcohol in a pattern that was rated as risky or high risk in terms of long-term harm. The risk peaks for both men and women aged between 20 and 29 years.[8] The figures are even more significant for short-term harm, where 24 per cent of males and 17 per cent of females in 2004 drank at least once a month in a manner that was risky or high risk.[9] Alcohol consumption is especially on the increase amongst young women, with 16 to 17 per cent drinking at a ‘hazardous’ level, according to data from three states surveyed in 1990.[10]

Alcohol is a leading cause of disease[11] and is second only to tobacco as a preventable cause of drug-related morbidity and mortality.[12] In 1998 around 2000 deaths among persons aged 0–64 were attributable to the use of alcohol, rising to 3300 deaths per year in 2003.[13] Leading causes of alcohol death are liver disease followed by road crash injury, cancer, and suicide. These types of deaths reflect a pattern of drinking to intoxication with more people dying from acute rather than chronic effects of alcohol.[14] The Australian Burden of Disease study estimated almost 4.9 per cent of the total burden of disease in Australia in 1996 to be attributable to alcohol consumption.[15]

Abuse of alcohol is also heavily implicated in public order offences, assaults, criminal damage offences, domestic violence, sexual assaults and rape.[16] For example, one study of alcohol-related incidents in Queensland and New South Wales found there was an 82 per cent correlation between serious assault and alcohol in Queensland, 73 per cent correlation with assault in New South Wales, 40 per cent correlation with domestic violence in New South Wales, and 63.6 per cent correlation with suicide attempts in Queensland.[17] Interestingly, there is an equally strong connection between alcohol consumption and victims of violence.[18]

Against this background, it is highly questionable whether an individual’s decision to drink to excess is merely a matter of personal choice, or whether it should be seen as going well beyond the limits of personal autonomy, and intruding into the collective sphere. The consequences of alcohol abuse fall on the entire community, drinkers and non-drinkers alike, and it is appropriate that commercial servers be required to assume a greater share of the responsibility for the harm caused.


A The Facts

Cole concerned a plaintiff who was run down and seriously injured while walking along a roadway after dark with a blood alcohol reading of 0.238. She had spent the previous nine hours on and around the defendant’s premises, drinking heavily. She sued the car driver and the club. At trial she was awarded $420 000 in the New South Wales Supreme Court, with liability apportioned 30 per cent each to the car driver and club, and 40 per cent to the plaintiff. The New South Wales Court of Appeal[19] held her fully responsible, and the majority of the High Court agreed, with McHugh and Kirby JJ dissenting.

The differences in outcome turned partly on the view of the facts accepted in each court, since there were many gaps in the evidence. The majority of the High Court accepted the view of the Court of Appeal, contrary to that of the trial judge, that there had been no supply of alcohol by the defendant after 12.30 pm, six hours before the injury occurred. At that time there was no reason for the server to regard the plaintiff as significantly intoxicated.[20] Ms Cole apparently continued to drink, becoming ‘totally inebriated’ and ‘an embarrassment’. Views differed as to the source of the later alcohol,[21] and the club’s role in supplying the further alcohol remains unclear. When the plaintiff next attempted to buy a drink, at 3 pm, she was refused service; she was finally asked two hours later to leave the premises because of disorderly behaviour. She was at that time ‘very, very drunk …[and] being held up by someone else’[22] according to the club manager. The club’s offers of transport home were abusively rejected.

The breaches of duty alleged against the club were supplying Ms Cole with alcohol when a reasonable person would have known she was intoxicated, and allowing her to leave the premises in an unsafe condition, without proper and adequate assistance.[23] Gleeson CJ noted that both alleged breaches ‘involve failure to restrain or prevent the appellant from engaging in voluntary behaviour’[24] thus raising the issue as to whether an affirmative duty to protect, control or rescue exists in relation to alcohol service.

B Duty, Responsibility, Autonomy and Free Will

The majority judgments stressed individual responsibility, free will, personal autonomy and choice in denying or avoiding a decision on duty of care: ‘On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury.’[25] According to Gleeson CJ, ‘this principle gives effect to a value of the law that respects personal autonomy…privacy and…freedom of action’,[26] and to impose a duty on alcohol servers would involve ‘both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice.’[27] Callinan J expressed similar views, while Gummow and Hayne JJ regarded it as ‘inappropriate’ and unnecessary to decide the existence or content of any duty. They reasoned that if the club owed the plaintiff a duty to take care that she did not fall into danger of physical injury after leaving, it had discharged the duty by offering her safe transport home. On the other hand, if the duty was one to monitor and moderate her alcohol consumption, ‘any breach of that duty was not a cause of the injuries she sustained.’[28] Most of their reasoning is based on evidentiary problems. As with many difficult ‘duty’ situations, the question here is not whether there is a duty at all, but whether ‘the duty of care [has] the scope which is contended for.’[29]

Gleeson CJ rejected the existence of any general duty of care on servers to protect adults from the risk of physical injury resulting from self-induced intoxication, and added that if such a duty were found, there would be no basis for distinguishing commercial servers from social hosts.[30] Social host liability, that is, liability arising in non-commercial settings involving alcohol, is a familiar if controversial concept in the law of both the United States and Canada but has not been tested as yet in Australia. Gleeson CJ referred to the ‘burdensome practical consequences’, and the fact that the supplier of alcohol is ‘in no position to assess the risk…[whereas] the consumer knows the risk’.[31] Callinan J defined the duty of care in issue as being ‘to protect persons from harm caused by intoxication following a deliberate and voluntary decision … to drink to excess…’ and denied that such a duty existed, since the drinker was ‘exercising autonomy for which that person should carry personal responsibility in law’.[32]

In Kirby J’s dissenting view, assumptions about free will need to be re- examined in the context of alcohol, since by its very nature alcohol can ‘impair, and eventually … destroy, any such free will’. For this reason, servers had a responsibility to moderate and supervise the supply of alcohol, and ‘to respond to, and ameliorate, the consequences’ where clients are unable to care for their own safety.[33] The action finally taken by the club in Cole was ‘an instance of too little, too late.’[34] As Kirby J saw it, the choice facing the court was to accept either

that the law imposes a duty of care on those in effective control…or it transfers responsibility solely to a person whose capacity to exercise responsibility had been repeatedly and seriously diminished …by the type of conditions that existed in the club’s premises.[35]

C Occupiers’ Liability

McHugh J agreed that ‘[t]he common law regards individuals as autonomous beings who are entitled to make, but are legally responsible for, their own choices’, but did not regard autonomy as the relevant issue. Instead, he based his reasoning on principles of occupiers’ liability, finding the club liable by means of ‘the rigorous application of basic negligence doctrine’. He said ‘[o]nce it is seen that the club had a legal duty to prevent [Ms Cole] drinking herself into a state where she was liable to suffer injury…the club had a legal responsibility for the injury. Instinct must give way to the logic of the common law.’[36] As with other groups such as employers, teachers, and professional persons who have rights of control over others, ‘the duty owed by clubs to entrants extends to taking affirmative action to prevent harm’.[37]

In his dissenting judgment in Jones v Bartlett [38] McHugh J also adopted a far more expansive notion of a landlord’s duty than the majority of the Court, stating that ‘the common law duty of care owed…[by landlords to tenants and others] is to take reasonable care to avoid foreseeable risks of harm…having regard to all the circumstances…’ The duty includes but is not limited to dangerous latent defects in premises.[39] Jones concerned a resident injured by walking into a non safety-standard glass door on tenanted premises. According to Kirby J ‘[d]ifferent considerations may well apply to premises used …for commercial…purposes [since] [w]here members of the public generally are invited onto, or have a right to enter, premises a higher duty will be imposed.’[40] Much of the majority reasoning in Jones turned on economic arguments about the effects on tenants and the supply of low-cost housing if liability were to be imposed. Intoxication situations are significantly different, since the risks of injury are high, extreme intoxication is easily detected, and occupiers are in a very favourable position to take simple precautions against injury, as well as to pass on any extra costs to a broad client base.

Innkeeper and guest is one of the standard categories of relationship in which the weaker party is entitled to rely on the stronger for protection.[41] Chordas v Bryant (Wellington) Pty Ltd,[42] for example, established that a theatre, hotel or restaurant owes a responsibility to its patrons to safeguard them from molestation or other harmful misconduct by other guests and intruders.[43] A relevant factor is whether the defendant stands to benefit financially from the relationship,[44] which is obviously the case between hotel and patron.

McHugh J reasoned that the duty of an occupier ‘to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages …[including] injury that is causally connected to ingesting beverages’.[45] If the supply of alcohol to a customer gives rise to ‘a reasonable possibility’ of that customer suffering a type of injury not likely to be suffered by a sober customer, the club will be liable where the exercise of reasonable care would have avoided the injury. As he had pointed out in a previous case, ‘[o]rdinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk.’[46] Here, the server had created the risk.

The crux of McHugh J’s opinion was that ‘the club had an affirmative duty to take steps to prevent [Ms Cole] from drinking’ to excess.[47] Cases involving affirmative duties were an exception: ‘Particularly where the duty owed extends to protecting the plaintiff, it is unlikely that the voluntary choice of the injured person will preclude a right of action.’[48] A duty of the type contemplated by McHugh J extends far beyond mere refusal of service, or offers of transport to intoxicated patrons. In his view, ‘once the club…should reasonably have foreseen that the time had come for Ms Cole to stop drinking if she was to avoid serious risk of injury, the club had an affirmative duty to take steps to prevent her drinking.’[49] Thus it breached its duty long before Ms Cole left the premises. Her abusive rejection of the offer of transport was not a novus actus interveniens breaking the chain of causation, since it was ‘just the kind of response that might be expected to flow from the club’s breach of duty’.[50]

The reasoning of the two dissenting judges in Cole is far more persuasive than either generalised appeals to ‘personal responsibility’, or avoidance of the duty issue based on denial of breach or causation. Both Kirby and McHugh JJ accepted the importance of autonomy as a principle, but rejected its application in the context of alcohol service for different reasons. Since Australian Safeway Stores Pty Ltd v Zaluzna[51] it has been clear that occupiers’ liability situations should be treated as ordinary negligence. Whilst there is no duty to protect entrants from random criminal attacks by third parties,[52] this is not comparable to a tortious motor vehicle accident, brought about in part by the plaintiff’s impaired judgement and unsafe behaviour resulting from intoxication. It must be remembered that at no stage was the club expected to bear all the responsibility for Ms Cole’s injury, since at trial responsibility was apportioned between the club, the negligent driver and the injured plaintiff, with the largest share allocated to the plaintiff.

An affirmative duty imposed on servers to prevent patrons from drinking to excess is a protective duty derived from the server’s control of both the premises and the supply of alcohol. This should extend to injury on the premises and for the duration of the intoxication, which would include the journey home. The reasoning in Kondis v State Transport Authority[53] is analogous. There, the existence of a non-delegable duty of care was dependent on the assumption of responsibility or control, in circumstances where care might reasonably be expected. The ‘central element of control’ from Kondis is coupled with ‘special dependence or vulnerability’ on the part of the injured person in Introvigne[54] to impose a higher level of duty.

Alcohol servers and their patrons fulfil both elements. The hazardous nature of excessive alcohol consumption in itself would suggest a higher than normal level of obligation on servers, although not ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’.[55]


A Dram Shop Laws in the United States

Australia has no equivalent of the body of statute and common law liability known as ‘dram shop liability’ in many parts of the United States and Canada. In the United States, alcohol consumption and service is more stringently regulated than anywhere else in the common law world. Although historically at common law no cause of action existed for an injured third party against an alcohol supplier,[56] dram[57] shop liability laws[58] have been in place in some states from the temperance era of the late 19th century. The first state to pass such laws was Wisconsin in 1849, followed by Indiana in 1853, then Ohio, Pennsylvania, New York and Maine. By 1870, 11 states had such legislation.[59] President Reagan’s Presidential Commission on Drunk Driving[60] recommended that all states enact alcohol server laws, and a model statute was drafted in 1985.[61] In 1988, 21 states had such legislation in place,[62] the figure increasing to 43 states (and Washington DC) by 2004, leaving only eight states free of dram shop laws,[63] most notably Nevada.

These laws hold alcohol servers responsible for harm that intoxicated or underage patrons cause to other people, or in some cases, themselves. They are established at the state level through common law, legislation, or both, and vary quite considerably.[64] The laws have been applied against bar and tavern owners, managers and staff; employers conducting staff parties; producers of alcoholic beverages; and in some instances social hosts. Damages awarded to plaintiffs suffering injury or damage have been significant, in some cases amounting to millions of dollars.[65] Most dram shop laws cover alcohol service to minors, still defined in the United States as persons below the age of 21 years. Dram shop laws form a continuum, with alcohol sellers exposed to varying degrees of liability. In general the southern states are rated lowest on the scale of liability exposure, with states such as California falling at the high end. One broad example, from Illinois,[66] provides that:

Every person who is injured within the state in person or property by any intoxicated person has a right of action in his or her own name, severally or jointly, against any person … who, by selling or giving alcoholic liquor … causes the intoxication.

Unlike most states, Illinois does not require proof that the defendant knew or should have known that the patron was intoxicated; every person who sold the patron alcohol can potentially face liability. Such broad liability is intended ‘to place responsibility for damages caused by intoxicants on those who profit from the sale of alcohol … [and] to protect the health, safety, and welfare of the people from the dangers of traffic in liquor.’[67] Similarly in Maine, the purpose of the statute is stated as being ‘to prevent intoxication related injuries, deaths ...’.[68]

Attempts have been made to define the concept of ‘obvious intoxication’. For example, Missouri’s dram shop law requires proof that the party demonstrates ‘significantly uncoordinated physical action or significant physical dysfunction.’[69] In Texas, a patron must be so obviously intoxicated that he presents a clear danger to himself or others.[70] A narrower example comes from Minnesota, where dram shop laws impose liability only when an illegal sale of alcohol directly results in harm to an innocent third party, specifically personal injury, property damage, loss in means of support and ‘other pecuniary loss’. Illegal sales are defined to include, inter alia, any sale to a minor and any sale to an obviously intoxicated person. [71] Alabama, Alaska and Michigan also limit liability to illegal sales.[72]

The relationship between dram shop legislation and the common law has been variously interpreted. In some states, such as Illinois, the existence of legislation has been held to preclude common law actions;[73] in some, the two exist side by side, whilst in others, common law actions are available only if the dram shop law is held not to apply in the particular circumstances.[74] In states without dram shop laws, some courts have allowed cases based on breach of statutory duty, others have accepted breach of statutory duty (for example legislative provisions forbidding serving of underage patrons) as evidence of breach of duty in negligence. At the other end of the spectrum are states[75] in which the absence of dram shop legislation has been used to interpret the common law as also denying recovery. Some states have extended dram shop liability to include ‘social host’ liability, either applying the legislation directly or extending common law negligence.[76] Illinois has created judicial exceptions to both its common law and dram shop laws to extend liability to social hosts, including holding employers liable for injuries caused by intoxicated employees. [77]

There is growing evidence that dram shop legislation has led to significant changes in work practices within the liquor industry amongst employees, employers, owners of licensed premises, licensees, and producers of alcoholic beverages. Ireland argues that ‘creation of liability for producers offers perhaps the greatest likelihood of quick change. The stimulus of liability … has been a very powerful engine for change in North America and has driven introduction of training programmes such as alcohol serving and management programmes’.[78] Wagenaar and Holder[79] also suggest that dram shop laws can encourage responsible beverage service practices to reduce exposure to liability. One study carried out in 1991 found that the initiation of liability suits in Texas in 1983 and 1984 caused significant changes in alcohol server practices, resulting in fewer people driving while intoxicated and fewer single-vehicle night-time (SVN) injury crashes.[80] Another study found a difference in server practices relative to exposure to liability. Where exposure is relatively high, there is more publicity regarding liability; alcohol servers and management are more aware of liability; more servers obtain insurance; there are fewer low-price drink promotions; and more servers check identification.[81] Mandated server training, such as that introduced in Oregon in the early 1990s,[82] is a feature in some states.

B Common Law in Canada

Dram shop laws operate much less comprehensively in Canada than in the United States, and greater emphasis is placed on common law negligence. By the late 1970s a ‘coalition of factors created a legal and social environment that fuelled a rapid expansion in the number and kinds of alcohol liability claims.’[83] These were based on established tort principles, reflecting ‘broader developments in tort law and a hardening of public attitudes towards alcohol-related harms’.[84] The first server liability case in Canada, Jordan House Ltd v Menow,[85] was decided in Ontario in 1973, with facts similar to those in Cole. A significant number of cases has been brought since then, most importantly Stewart v Pettie[86] in the Supreme Court. 1 Injury to Intoxicated Patron: Jordan House Ltd v Menow In Jordan House an intoxicated patron had been ejected from the defendant’s hotel at night and run down half an hour later whilst walking along the highway wearing dark clothing. He had been given a lift part of the way, but was wandering in the middle of the road in the opposite direction to his home when hit by the car. There were some significant differences between Jordan House and Cole, however, in that the plaintiff in Jordan House was well known to the hotel as a frequent and heavy drinker, to the point where instructions had been given that he was not to be served unless accompanied by a responsible adult. On this occasion he was served past the point of obvious intoxication, despite being alone, and ejected without the offer of transport that had been made in Cole. Hotel employees knew he would have to walk home along a busy highway.

The trial judge found that the hotelier’s positive conduct had placed the plaintiff at risk of injury, and apportioned blame equally between the plaintiff, the hotel and the driver. The result was upheld on appeal to the Supreme Court, the major judgment being given by Laskin J (Ritchie J concurring). The presence of statutory provisions prohibiting service to intoxicated persons was seen as ‘crystallising a relevant fact situation, which because of its authoritative source, the court was entitled to consider’ in assessing the existence of a duty of care.[87] Laskin J accepted that there was a foreseeable risk of serious harm given the circumstances and the relationship between the parties. Unlike the trial judge, he avoided basing the duty solely on the hotel’s positive risk-creating actions. The relationship, in particular the known ‘propensity for irresponsible behaviour under the influence’, was central in Ritchie J’s reasoning as well.

Laskin J distinguished the hotel’s position from that of ‘persons in general’. The hotel was in an ‘invitor–-invitee relationship with Menow … and it was aware, through its employees, of his intoxicated condition, a condition which … it fed in violation of applicable liquor licence and liquor control legislation. There was a probable risk of personal injury to Menow…’[88] Ontario at that time had a form of dram shop law which conferred a right of action in relation to injury to third parties and their property, or fatal injuries including suicide, to intoxicated persons.[89] Whilst not directly relevant to the case, it was indicative of legislative sentiment on related matters, and may have informed the way in which the common law was interpreted. On causation, the court did not regard the plaintiff’s actions as being sufficient to constitute a novus actus interveniens. Laskin J concluded that there was ‘nothing unreasonable in calling upon the hotel in such circumstances to take care to see that [the patron] is not exposed to injury because of his intoxication.’[90]

Many other server liability cases followed,[91] holding providers partly responsible for alcohol-related injury, but tending to focus on the facts, and usually apportioning modest shares of responsibility to servers. In Hague v Billings, for instance, a patron became very drunk elsewhere before visiting two hotels in turn. The first served him only once before realising his condition, but the second hotel served him three or four beers over about one-and-a-half hours. Shortly after leaving the second hotel in his car he caused a fatal accident. In an action brought by the family of the deceased, liability was apportioned 85 per cent to the intoxicated patron, and 15 per cent to the second hotel, which was statutorily liable under dram shop laws.[92] 2 Injury to Third Party: Stewart v Pettie Stewart[93] was the first third party server case to reach the Canadian Supreme Court, in 1995. Gillian Stewart was rendered quadriplegic as a result of a car accident on the way home from a theatre restaurant. She sued the driver (her brother) Stuart Pettie, the theatre owner and operator Mayfield Investments, and the City of Edmonton. The trial judge found that Pettie had been driving below the speed limit, in a manner ‘appropriate to the conditions’, but had lost control on the icy road and crashed into a power pole and wall. Three of the four people in the car suffered no serious injury, but Gillian, who was not wearing a seat belt,[94] was thrown across the car, striking her head. The driver’s blood alcohol level was well over the legal limit, registering at 0.190 and 0.200 about an hour after the accident. Mr Pettie had consumed between 10 and 14 ounces of liquor (between five and seven double rums) during dinner, over a five- hour period. He was served throughout the evening by the same waitress, who kept a running total of his tab. He showed no signs of obvious intoxication. Neither of the women in the party had been drinking. The plaintiff knew approximately how much her brother had drunk, and how he reacted when intoxicated. The four patrons had discussed just prior to departure whether Pettie was fit to drive, and all agreed that he was.

The action against the driver Pettie was settled, with Stuart Pettie admitting gross negligence, necessitated by legislation in place at the time covering gratuitous passengers. The action against the city was also settled. The plaintiffs lost their case against Mayfield, but Agrios J awarded a provisional 10 per cent against it in case he was overturned on appeal. In his view, liability could only attach to the server if there had been some combination of circumstances such as visible intoxication and knowledge that Pettie was going to drive. Since non-drinkers in the party, fully aware of the circumstances, were not concerned about Pettie driving, it was ‘unreasonable’ to expect that Mayfield should have been. Finally, Agrios J found that Pettie was negligent but not grossly negligent.[95]

Allowing Stewart’s appeal, the Alberta Court of Appeal found the server Mayfield liable, with a reduction for contributory negligence, because it ought to have known that Pettie was becoming intoxicated, might drive, and might injure someone. The trial judge’s apportionment of responsibility at 10 per cent was affirmed. The court accepted the plaintiff’s argument that two separate duties of care were owed to her, without detailed reasoning. The first was a legal duty to ‘ensure that Mr Pettie was not served so much liquor that he became a danger to himself and others’. Authorities cited in support included Hague v Billings, Sambell, and Schmidt, referred to above. The second duty was an affirmative duty imposed on the server to prevent Pettie from driving. Jordan House and other lower court decisions, especially Hague v Billings,[96] were relied upon for this second proposition. Hetherington JA said that the presence of sober members in the party did not affect the foreseeability of the fact that Pettie might drive.[97] Kerans J, in a separate concurring judgement, said that the server ought to have known that Pettie was intoxicated and that there was a risk he might cause harm to third parties as a result. There was a foreseeable risk that he might drive, and no enquiries were made to check this.[98]

The Canadian Supreme Court reversed the decision, finding for the defendant on both breach of duty and causation. The judgment of the seven-member court[99] was delivered by Major J. He began his analysis of duty by referring to Anns v Merton London Borough Council.[100] The Canadian Supreme Court has repeatedly endorsed Lord Wilberforce’s ‘modern approach’ to duty as stated in Anns, adopting it in City of Kamloops v Nielson[101] and other cases since then.[102] The familiar two- stage test from Anns requires that ‘there is sufficient relationship of proximity’ and once that is established, ‘any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise…’[103] are taken into account. Australia has rejected this two-stage approach in favour of incrementalism and proximity, and the House of Lords itself now applies a three-stage test drawn from Caparo Industries Plc v Dickman.[104] The Canadian adherence to Anns might be expected to result in interpretations of duty that are more favourable to plaintiffs than elsewhere in the Commonwealth. The reasoning on duty in Stewart, however, appears to draw on Jordan House, decided three years before Anns and 10 years before Kamloops, rather than Anns.

Major J regarded it as a ‘logical step to move from finding that a duty of care is owed to patrons of the bar [as in Jordan House] to finding that a duty is also owed to third parties who might reasonably be expected to come into contact with the patron, and to whom the patron may pose some risk.’[105] The result of this duty is that the bar ‘may be required to prevent an intoxicated patron from driving where it is apparent that he intends to drive.’ The duty Mayfield owed to Gillian Stewart arose because of her membership of a class of persons who could be expected to be on the highway.[106] Major J rejected the two duties of care argument accepted by the Court of Appeal, because it

confuses the existence of the duty of care with the standard of care ... the question of whether a duty of care exists is a question of the relationship … the question of what conduct is required to satisfy the duty is a question of the appropriate standard of care.[107]

Since over-serving by itself could not give rise to liability, which depends on foreseeable risk of harm, it followed that any liability on the server’s part ‘must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk’ of injury to the plaintiff.[108] Major J discussed Sambell v Hudago[109] and Canada Trust v Porter,[110] which had favoured the injured plaintiff against the alcohol server, and distinguished them on the grounds that they ‘may have been influenced by the existence of provincial legislation.’[111] Both had considered s 53 of the Ontario Liquor Licence Act, which provided a statutory action against servers for people injured as a result of a patron becoming drunk, and had held that there was a parallel action at common law.

Major J in Stewart accepted the ‘special relationship’ between vendors of alcohol and the motoring public, but had ‘difficulty accepting the proposition that the mere existence of this ‘special relationship’, without more, permits the imposition of a positive duty to act.’[112] It may ‘frequently warrant [such] imposition … but the sine qua non of tortious liability remains the foreseeability of the risk.’[113] The relevant risk was whether Pettie would drive, rather than whether he might place someone at risk if he did drive. The critical factor grounding the decision in favour of the defendant was the presence of the two sober women in the party. This turned on a comment made in Jordan House that the server could have escaped liability had it put the intoxicated patron ‘under the charge of a responsible person.’[114] Major J described it as a ‘matter of semantics’ that the server had not ‘technically’ put Pettie under the control of the two sober women, since they were already present.

The facts in Stewart were certainly much less clear-cut in terms of server irresponsibility than those in Jordan House. The Australian decision in Cole falls somewhere between the two positions, but is considerably closer to Jordan House. In Stewart Major J accepted that alcohol servers had a responsibility to intervene in appropriate circumstances, and noted that the duty cannot be avoided by intentionally structuring the drinking environment in such a way as to make it impossible to know whether intervention is necessary. He instanced two cases[115] where patrons had purchased drinks from a cash bar, making it very difficult for the server to monitor consumption as well as to determine whether intervention was needed. Arguably, the plaintiff in Cole may have succeeded had the High Court adopted even the Stewart approach to server liability, because of the loose way in which the drinking environment was structured, allowing patrons to move freely between the inside and outside of the premises. On the Jordan House test, she would probably have succeeded, although there would have been room to distinguish Jordan House on the factual differences.


‘Tort reform’ around Australia has imposed statutory controls on civil liability for personal injury, with the express intent of limiting both the number and range of claimants, and the amounts of damages recoverable by plaintiffs who are still able to meet the criteria. This is based on recommendations of the Ipp Committee,[116] set up by the Commonwealth government to
inquire into the application, effectiveness and operation of common law principles applied in negligence to limit liability arising from personal injury and death … [and] develop and evaluate principled options to limit liability and quantum of awards for damages.[117]

These dramatic changes proceed from a perceived ‘crisis’ in negligence law, fed by perceptions of overly generous judges and undeserving plaintiffs. Two years on, the evidence in support of such a view is thin. An examination of the intoxication provisions in two jurisdictions, New South Wales and Queensland, indicates the trend away from liability, although each state differs in the detail.

A Civil Liability Act 2002 (NSW)

The Civil Liability Act 2002 (NSW) qualifies the common law regarding the effect of intoxication on issues of duty, standard of care, and contributory negligence in relation to personal injury, death and property damage.[118] Intoxication is defined very broadly as ‘being under the influence of alcohol or a drug (whether or not taken for medicinal purposes and whether or not lawfully taken)’.[119] ‘Influence’ is not defined in terms of degree or any specific measure, such as blood alcohol content. A similar provision elsewhere was construed as meaning ‘a disturbing of the faculties, as disturbing the balance of a man’s mind, or disturbing the quiet calm intelligent exercise of the faculties’.[120] Experts largely agree that with a blood alcohol level of 0.02 or 0.03, alcohol will have some minimal influence on the drinker,[121] although the legal limit in New South Wales for driving offences is set at 0.05. Whether a person is under the influence of alcohol was said in Molloy v McDonald[122] to be a pure question of fact, and not capable of more precise definition.

In determining duty of care, the Act provides that

it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated.[123]

Further, ‘a person is not owed a duty merely because the person is intoxicated’[124] and ‘the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person’.[125] These provisions may not necessarily preclude a duty being owed where other relevant factors are found to exist, such as control, knowledge, or assumption of responsibility. The Act expressly provides that the duty section above[126] is applicable to motor accidents[127] notwithstanding other exclusions in relation to the Motor Accidents Act 1988 (NSW) and Motor Accidents Compensation Act 1999 (NSW).

Recovery is precluded where the plaintiff was ‘intoxicated to the extent that [his or her] capacity to exercise reasonable care and skill [in caring for his or her own safety] was impaired’ at the time of the act or omission causing the death, injury or damage.[128] The section forbids the awarding of damages unless the court is satisfied that the death or injury was ‘likely to have occurred even if the person had not been intoxicated’,[129] placing the onus on the plaintiff. Where the court is satisfied that the loss was likely even without intoxication, a presumption of contributory negligence is mandatory unless the intoxication ‘did not contribute in any way’.[130] Given the very broad definition of intoxication,[131] proving lack of contribution in ‘any’ way will be difficult. Where contributory negligence is presumed, a minimum level of 25 per cent is set,[132] removing judicial discretion. The section is avoided if the court is satisfied that the intoxication was not self- induced.[133]

B Civil Liability Act 2003 (Qld)

Queensland’s Civil Liability Act 2003 also deals with intoxication.[134] The provisions regulating duty and standard of care[135] are in identical terms to the New South Wales Act.[136] Section 46(2) is different, in that it does not affect liability arising out of conduct happening on licensed premises, as defined under the Liquor Act 1992 (Qld).[137] There is a presumption of contributory negligence, rebuttable only by proof that the intoxication ‘did not contribute to the breach of duty’[138] or that the intoxication was not self- induced.[139] As in New South Wales, where contributory negligence is presumed, the minimum reduction allowed is 25 per cent.[140]

Section 47(5) of the Queensland Act differs from the New South Wales Act in that the former Act applies to motor vehicle accidents in which the injured party was the intoxicated driver. If the evidence establishes a blood alcohol level of 150 mg or more per 100 mL of blood, or that ‘the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle’, then the minimum reduction is increased to 50 per cent. A presumption of contributory negligence is imposed if the injured person has relied on the skill and care of an intoxicated person, and was aware or ought reasonably to have been aware of the intoxication.[141] This presumption can only be rebutted by proof that the intoxication did not contribute to the breach, or that the plaintiff ‘could not reasonably be expected to have avoided relying on the defendant’s care and skill’.[142] Again, the minimum reduction is 25 per cent.


Tort law is a powerful tool for articulating values, educating, promoting safety, setting minimum standards of acceptable behaviour in a community, and bringing about social change, as well as for delivering compensation. As noted earlier, the fundamental issue is where to draw the line between individual and collective responsibility for injury and misfortune. This necessarily impacts on notions of duty of care. Historically, the common law has been reluctant to impose affirmative duties, sheltering behind the distinction between acts and omissions or misfeasance and non-feasance. The absence of a duty to rescue is a clear example. This laissez-faire approach has been justified in the name of autonomy and individual liberty, as well as pragmatically. Distinctions have been drawn between acting in such a way as to create a risk, and merely failing to alleviate a person’s predicament or failing to act to his or her benefit.

Injury in the context of alcohol abuse or over-use illustrates many of the central concerns and conflicting values in negligence, because it taps so easily into moral ideas about personal responsibility and self-control, but also impacts very broadly on the wider community. Deliberate exploitation of the vulnerable for the profit of the few through alcohol sales is a moral issue on which views may differ, but transfer of the financial consequences of the industry to the whole community is legitimately a community concern. The range of strategies available to combat alcohol abuse includes education, environmental features, deterrence, and/or regulation. Existing provisions in the liquor Acts of each state already prohibit the presence or serving of intoxicated persons on licensed premises. Licensing laws, regulation of opening hours and drinking ages, taxation and other financial imposts, deterrence programmes such as random breath-testing, educative programmes, voluntary regulation of the industry, server training programmes, and drug and alcohol summits all have a part to play. Tort law, too, must be allowed to play its part; a part rendered even more vital in the absence of a strong legislative regime such as dram shop laws in the United States.

By posing the duty question in terms of individual autonomy and free will, the majority in Cole defined alcohol abuse narrowly as an individual rather than a community problem, with responsibility firmly attached to the consumer rather than the server. In so doing, the High Court missed a clear opportunity to send a message about corporate responsibility in hazardous contexts. The provisions of the Civil Liability Acts in Queensland and New South Wales illustrate a similar individual-focused view held by governments around the country. Responsibility in Civil Liability Act terms appears far more concerned with plaintiffs’ responsibility than with that of defendants. Post 2002, it seems highly unlikely that a Cole-style plaintiff could succeed in negligence, even with a differently constituted High Court.

Fleming argued in 1998 that ‘today, though far from defunct, the strength of [individualist and laissez-faire] sentiments is steadily being sapped by an increasing sense of heightened social obligation and other communitarian tendencies in our midst. Accordingly, the legal doctrine which they once sustained is itself under retreat.’[143] The views expressed by the dissenting judges, Kirby and McHugh JJ, in Cole bear this out, as does the approach adopted in Canada to alcohol server liability. Parliamentary ‘tort reform’ and the majority’s decision in Cole, however, support Fleming’s claim that laissez-faire policies are ‘far from defunct.’ Talk of personal responsibility and autonomy in the context of alcohol service operates as a justification for denial of community responsibility for activities of dubious social worth, which benefit strong commercial interests and provide government revenue.[144] Both ‘tort reform’ on intoxication and the decision in Cole can only be seen as a regrettable step backwards for a society that should pride itself on being enlightened, caring and compassionate. Canada and the United States have demonstrated that contrary choices are readily available. Certainly, the majority’s denial of collective responsibility ‘is not the concept of the law of tort that I hold’.[145]

[1] Attributed to Dean Martin.

[2] Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897, 907–8 (HL) (Lord Hoffman,).

[3] Eg Review of the Law of Negligence, Final Report (2002) (the ‘Ipp Report’); Civil Liability Act 2002 (NSW); Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW); Civil Liability Act 2003 (Qld); Personal Injuries Proceedings Act 2002 (Qld); Wrongs (Liability and Damages for Personal Injury) Act 2002 (SA); Statute Amendment (Structured Settlements) Act 2002 (SA); Recreational Services (Limitation of Liability) Act 2002 (SA); Civil Law (Wrongs) Act 2002 (ACT); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas).

[4] [2004] HCA 29 (‘Cole’).

[5] See, eg, Harold Luntz, ‘Torts Turnaround Downunder’ (2001) 1 Oxford University Commonwealth Law Journal 95; Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Australian Bar Review 135; but see the recent High Court decision in Swain v Waverley Municipal Council [2005] HCA 4 (9 February 2005), which may indicate that the tide is turning.

[6] [1998] HCA 5; (1998) 192 CLR 431. Cf Nagle v Rottenest Island Authority (1993) 177 CLR.

[7] R Room, ‘The Dialectic of Drinking in Australian Life: From the Rum Corps to the Wine Column’ (1988) 7, Australian Drug and Alcohol Review, 413.

[8] AIHW, ‘Risk of Alcohol-related Harm in the Long Term’ in Statistics on Drug Use in Australia 2002, Drug Statistics Series No. 12 (2003) Australian Institute of Health and Welfare (out of print, but PDF available for downloading at <> at 1 June 2005).

[9] AIHW, ‘Alcohol and Other Drug Use in Australia’ in 2004 National Drug Strategy Household Survey: First Results, Drug Statistics Series No. 13 (7 April 2005) Australian Institute of Health and Welfare <> at 1 June 2005.

[10] Defined as in excess of 140 g per week: B Corti and J Ibrahim, ‘Women and Alcohol — Trends in Australia’ (1990) Medical Journal of Australia 6.

[11] including cancers of the lips, mouth, throat, oesophagus, stomach, pancreas and liver; cirrhosis of the liver; brain damage, including cognitive problems, dementia and brain haemorrhage; and cardiovascular disease, including heart failure and strokes: AIHW, A Guide to Australian Alcohol Data (2004) 6–7; G Edwards et al (17 authors), Alcohol Policy and the Public Good (1994).

[12] Guide to Australian Alcohol Data, above n 11, 1.

[13] NSW Alcohol Summit, Preliminary Background Paper, April 2003. Alcohol is reported to be a significant factor in 27 per cent of all road fatalities, and 60 per cent of all road fatalities occurring on Thursday, Friday and Saturday nights: Channel 10, Eyewitness News, 8 December 1994.

[14] Guide to Australian Alcohol Data, above n 12, 1.

[15] AIHW, ‘Alcohol and Other Drug Use in Australia’, above n 9.

[16] See studies from a range of Australian and overseas jurisdictions summarised in CS Ireland, ‘Alcohol and Its Contribution to Violence: New Directions for Policing Alcohol-related Violence, Crime and Anti-social Behaviour in New South Wales’ in D Chappell and SJ Egger (eds), Australian Violence:

Contemporary Perspectives II (1995) 156–61, 167–70.

[17] Ibid 161.

[18] G Fulde, M Cuthbert, and R Kelly, ‘Violence in Society: Fact or Fiction?’ Emergency Medicine, vol 3, 37–80; P Arro, G Crook, and T Fenlon, The Nature and Extent of Alcohol Related Incidents Requiring Police Attention in South East Queensland (1992).

[19] South Tweed Heads Rugby League Football Club v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 (Heydon and Santow JJA and Ipp AJA).

[20] Thus there was no breach of the Registered Clubs Act 1976 (NSW), s 44A of which makes it an offence to supply alcohol to intoxicated persons. Breach of statutory duty was not argued.

[21] Although the trial judge’s findings included later supply of a bottle of wine by the club, the Court of Appeal regarded this as an unwarranted inference. Callinan J, for instance, described the evidence as ‘far from clear’ regarding how much of the alcohol consumed by the appellant was supplied by the club.

[22] Cole [2004] HCA 29 [114].

[23] Cole [2004] HCA 29 [2](Gleeson CJ).

[24] Ibid [3].

[25] Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35; [2000] 1 AC 360, 379–80 (Lord Hope of Craighead), endorsed by Gleeson CJ in Cole [2004] HCA 29 at [14].

[26] Ibid.

[27] Ibid [18].

[28] Ibid [59].

[29] Peabody Fund v Sir Lindsay Parkinson Ltd [1985] AC 210, 240 (HL) (Lord Keith); see also Sullivan v Moody [2001] HCA 59; 183 ALR 404 and Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605 (HL).

[30] Cole [2004] HCA 29, [17].

[31] Ibid [12]–[13].

[32] Ibid [121].

[33] Ibid [90].

[34] Ibid [104].

[35] Ibid.

[36] Ibid [46].

[37] Ibid [34].

[38] [2000] HCA 56; (2000) 176 ALR 137 (‘Jones’).

[39] Ibid [100] endorsing Northern Sandblasting Ptd Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313, 343 (Dawson J).

[40] Jones [2000] HCA 56 [251]; (2000) 176 ALR 137, (Kirby J).

[41] John G Fleming, The Law of Torts (first published 1958, 9th ed, 1998) 168.

[42] (1988) 92 FLR 401; see also Guildford Rugby League Football & Recreational Club Ltd v Coad [2001] Aust Torts Reports 81–623; Oxlade v Gosbridge Pty Ltd (Unreported, NSWCA, 18 December 1998).

[43] Fleming, above n 41, 168–9.

[44] Ibid 169.

[45] Cole [2004] HCA 29 [31].

[46] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 575–76.

[47] Cole [2004] HCA 29, [39].

[48] Ibid [37]–[38].

[49] Ibid [39].

[50] Ibid [43].

[51] (1987) 162 CLR 479.

[52] Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 176 ALR 411.

[53] [1984] HCA 61; (1984) 154 CLR 672 (‘Kondis’) (Mason J, Deane and Dawson JJ concurring).

[54] Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258, 271 (Mason J). Both statements were endorsed in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; 120 ALR 42.

[55] Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; 120 ALR

[42] (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

[56] Cruse v Aden, Ill 231, 20 NE 73 (1889).

[57] A dram is a liquid measure of alcohol, as in the Scottish ‘wee dram.’

[58] See JF Mosher, Liquor Liability Law (2004), for the text of liability laws for each state (updated annually).

[59] JA Goldberg, ‘One for the Road: Liquor Liability Broadens’, (1987) American Bar Association Journal 86.

[60] Final Report (1983) 5, reported in L Burwell, ‘A Sobering New Approach to Liquor Vending Liability in Florida’ [1985] Fla St Uni L Rev 827; cited in G Orr, ‘Is An Innkeeper Her Brother’s Keeper? The Liability of Alcohol Servers’ (1995) 5 Torts LJ 239, 244.

[61] JF Mosher, ‘The Model Alcoholic Beverage Retail Licensee Liability Act of 1985’ (1985) 12 Western State L Rev 442, cited in Orr, above n 60, 244.

[62] DR deSteiger, ‘California Liquor Liability: A Decade After Coulter v Superior Court’ (1988) 16 Pepperdine L Rev 21, 23; Orr, above n 60, 243.

[63] Drunk Driving, Dram Shop Laws and Alcohol Testing with a Breathalyzer Alcohol Alert <> at 31 October 2004.

[64] Brief Review of the Literature on Dram Shop Liability Laws (28 September 1998) Alcohol-Related Injury and Violence (ARIV)

<> at 1 June 2005.

[65] CS Ireland, above n 16, 173.

[66] Liquor Control Act, ss 6–21, ILL ANN STAT § 43.135 (1987) cited in deSteiger, above n 62, and quoted by Orr, above n 60, 244.

[67] Erin Murphy ‘Blame it on the Bars’ bility at 21 June 2005 [68] Goldberg, above n 59.

[69] Ibid.

[70] Ibid.

[71] Civil Damages Act, Minn. Stat.§ 340A.801, subd.1.

[72] Above n 67 [73] eg, Charles v Seigfried 165 Ill.2d 482 (1995) (Illinois Supreme Court)

[74] Orr above n 60, 244.

[75] Nine states in 1993: Orr, above n 60, 245.

[76] Eg Illinois: Ill Rev Stat § 43.135 (Illinois Dram Shop Statute); Minnesota: Civil Damages Act, above n 71, amended 1990 to provide for ‘social host liability’, for giving alcohol to underage persons: Minn. Stat. 430A.90, subd.1. See ‘Comparison of Dram Shop and Social Host Liquor Liability’, Minnesota House of Representatives, House Research, October 2000; at 21 June 2005. See also Koehnen v Dufour 1998 WL 188865 at 1 (Minn. App. 1998) affirmed (Minn. March 11, 1999); discussed in Stacy E Cudd ‘Social Host Liability in Minnesota’ at 21 June 2005.

[77] Eg, Carroll Air Systems v Greenbaum Fla. Dist.Ct.App., No.91-3240,December 1, 1993; similarly in Texas, eg, D.Houston Inc., d/b/a Treasures v Love, 45 Tex. Sup. J. 942 (2001); see Wildman, Harrold, Allen and Dixon LLP, Employment and Labor Practice Group, ‘Employer Guidelines for Avoiding the Principal Causes of Post-Party Depression’, October 2002, at 21 June 2005;

[78] CS Ireland, above n 16, 174.

[79] Alexander C Wagenaar and Harold D Holder, ‘Effects of Alcohol Beverage Server Liability on Traffic Crash Injuries’ (1991) Nov/Dec 15(6) Alcoholism: Clinical and Experimental Research 942.

[80] SVN is used as a measure of crashes involving alcohol: Wagenaar and Holder, above n 79.

[81] HD Holder, K Janes, J Mosher, R Saltz, S Spurr and AC Wagenaar, ‘Alcohol Beverage Server Liability and the Reduction of Alcohol–Involved Problems’

(1993) Jan. 54 Journal of Studies on Alcohol 23. See Brief Review of the Literature on Dram Shop Liability Laws, above n. 64.

[82] HD Holder and AC Wagenaar, ‘Mandated Server Training and Reduced Alcohol-Involved Traffic Crashes: A Time Series Analysis of the Oregon Experience’ (1994) 26 Accident Analysis and Prevention 89.

[83] R Solomon and J Payne, ‘Alcohol Liability in Australia and Canada: Sell, Serve and Be Sued’ (1996) 4 Tort Law Review 188.

[84] Ibid.

[85] [1974] SCR 239 (‘Jordan House’).

[86] [1995] 1 SCR 131 (‘Stewart’).

[87] (1973) 38 DLR (3d) 105, 110.

[88] Quoted in Stewart, [1995] 1 SCR 131, [26].

[89] Liquor Licence Act 1960 (Ont) s 67; Orr, above n 60, 246.

[90] Stewart, [1995] 1 SCR 131, [26].

[91] See, eg, Schmidt v Sharpe (1983) 27 CCLT 1 (Ont HC) (‘Schmidt’); Hague v Billings (1989) 48 CCLT 192 (Ont HC), affirmed in part (1993) 13 OR (3d) 298 (CA); Canada Trust Co v Porter (1980) 2 ACWS (2d) 428 (Ont CA); Sambell v Hudago Enterprises Ltd [1990] OJ No 2494 (Ont Ct (Gen Div)) (QL) (‘Sambell’); Despres v Nobleton Lakes Golf Course Ltd (1994) 48 ACWS 3d 472; Gouge v Three Top Investments Holding Inc (1994) 47 ACWS 3d 212; McDonald v Hi-Lo Ltd. (1985) 33 ACWS 2d 279. See generally Orr, above n 60, 246–7.

[92] Orr, above n 60.

[93] (1995) 23 CCLT (2d) 89.

[94] Not required by Alberta law at that time. Criminal sanctions apply in all Australian states for failure to wear a seat belt. In New South Wales and South Australia this would result in a mandatory finding of contributory negligence: Motor Accidents Compensation Act 1999 (NSW) s 138(2)(c); Wrongs Act 1936 (SA) s 35A (1)(j).

[95] Stewart, [1995] 1 SCR 131, [11]–[12] (Major J).

[96] Hague v Billings (1989) 48 CCLT 192 (Ont HC), affirmed in part (1993) 13 OR

(3d) 298 (CA).

[97] In some jurisdictions, however, it would raise issues of volenti non fit injuria against those passengers. This is not the case, for example, in New South Wales, where the defence has been abolished and replaced with a mandatory finding of contributory negligence: Motor Accidents Compensation Act 1999 (NSW) s 138(2)(b).

[98] [1995] 1 SCR 131, [16].

[99] La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

[100] [1977] UKHL 4; [1978] AC 728 (HL) (‘Anns’).

[101] [1984] 2 SCR 2 (‘Kamloops’).

[102] Eg Just v British Columbia [1989] 2 SCR 1228; Hall v Hebert [1993] 2 SCR 159; Dobson v (Litigation Guardian of) Dobson [1999] 2 SCR 753.

[103] [1977] UKHL 4; [1978] AC 728 (HL), 751–2.

[104] [1990] UKHL 2; [1990] 2 AC 605 (HL); but see a move back towards Anns in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1995] UKHL 4; (1995) 3 All ER 307 (HL).

[105] Stewart, [1995] 1 SCR 131, [28].

[106] Ibid [30].

[107] Ibid [32].

[108] Ibid [36].

[109] [1990] OJ No 2494 (Ont Ct (Gen Div)) (QL).

[110] (1980) 2 ACWS (2d) 428 (Ont CA).

[111] Stewart, [1995] 1 SCR 131, [40].

[112] Ibid [48].

[113] Ibid [49].

[114] Jordan House, [1974] SCR 239, 249.

[115] Canada Trust v Porter, (1980) 2 ACWS (2d) 428 (Ont CA); and Gouge v Three Top Investments, (1994) 47 ACWS 3d 212.

[116] Above n 3.

[117] Terms of reference, Review of the Law of Negligence, Report August 2002 (2002).

[118] Civil Liability Act 2002 (NSW) pt 6, ss 4750.

[119] Civil Liability Act 2002 (NSW) pt 6, s 48.

[120] Government Insurance Office v Nowalinski (1985) 2 MVR 142 (Grove J, relying on Louden v British Merchants Insurance [1961] 1 WLR 798).

[121] A Stone, ‘The New Era of Public Liability,’ Paper presented at the Australian Lawyers’ Alliance National Conference, Melbourne, 21-23 October 2004, 32.

[122] (1939) 56 WN (NSW) 159, 164 (Bavin J).

[123] Civil Liability Act 2002 (NSW) pt 6, s 49(1)(a).

[124] Civil Liability Act 2002 (NSW) pt 6, s 49(1)(b).

[125] Civil Liability Act 2002 (NSW) pt 6, s 49(1)(c).

[126] Civil Liability Act 2002 (NSW) pt 6, s 49.

[127] Civil Liability Act 2002 (NSW) pt 1, s 3B(2)(f).

[128] Civil Liability Act 2002 (NSW) s 50.

[129] Civil Liability Act 2002 (NSW) s 50(2).

[130] Civil Liability Act 2002 (NSW) s 50(3).

[131] Civil Liability Act 2002 (NSW) s 48.

[132] Civil Liability Act 2002 (NSW) s 50(4).

[133] Civil Liability Act 2002 (NSW) s 50(5).

[134] Part 4, div 2, ss 4649.

[135] Civil Liability Act 2003 (Qld) s 46(1)(a)–(c).

[136] Civil Liability Act 2002 (NSW) s 49.

[137] Liquor Act 1992 (Qld) s 4.

[138] Civil Liability Act 2003 (Qld) s 47(3)(a).

[139] Civil Liability Act 2003 (Qld) s 47(3)(b).

[140] Civil Liability Act 2003 (Qld) s 47(4).

[141] Civil Liability Act 2003 (Qld) s 48(1)(c).

[142] Civil Liability Act 2003 (Qld) s 48(3).

[143] Fleming, above n 41, 163.

[144] Eg net government revenues associated with alcohol increased from $2.4 billion in 1995–96 to $3.1 billion in 2000–01: AIWA, ‘Alcohol and Other Drug Use in Australia’, above n 9.

[145] Cole [2004] HCA 29, [104] (Kirby J).

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