Dealing with drink - it's up to you

CANBERRA - Australian publicans are no longer legally responsible for the behaviour of people who become intoxicated in their bars, or for any consequences after they leave the premises.

The High Court has upheld an appeal by a Tasmanian publican against an earlier State Supreme Court ruling that held him responsible for the death of a 41-year-old motorcyclist by returning the man's keys and allowing him to ride home.

The court's full bench held that dealing with alcohol and its dangers was "a matter of personal decision and individual responsibility" for drinkers.

The ruling, which has been both welcomed and attacked, comes as concern grows in Australia at the dangers of drink-driving.

The Australian Capital Territory is debating whether to impose a zero blood alcohol limit for truckies and other professional drivers, New South Wales already has zero tolerance for learner and P-plate drivers, and Queensland is calling for a national debate on a blanket zero limit for all drivers.

In January the Tasmanian Supreme Court found that Tandara Motor Inn and publican Michael Kirkpatrick had breached their duty of care two years earlier by allowing 41-year-old backhoe operator Shane Scott to ride his motorcycle after drinking in the bar.

The Triabunna, east coast, inn and Kirkpatrick had been sued by Scott's widow, Sandra, after Scott was killed riding his wife's motorcycle on the 7km trip home.

Scott was not a regular at the Tandara's bar, but had met workmate Rex Kube for a drink after work and began consuming cans of bourbon and cola.

When rumours began that police were using a breathalyser on Scott's route home, Kube arranged for Kirkpatrick to lock the motorcycle in a storeroom and to hold the keys.

Scott's wife would come and collect him.

Kube's wife later arrived to pick up her husband and offered several times to drive Scott home, but was refused. She said Scott did not appear to be drunk.

Some time later Kirkpatrick told Scott he had had enough, that it was time to go home, and asked if he should call Scott's wife.

Scott replied: "If I want you to ring my f***ing wife I'd f***ing ask you."

He then became aggressive and abusive, and asked for his motorcycle and keys.

Kirkpatrick asked three times if he was all right to drive and each time Scott answered: "Yes, I'm fine."

Scott was killed when the motorcycle left the road on the way home.

The High Court said Kirkpatrick was not at fault because there was no duty of care.

The judges said that with the exception of exceptional cases - which this case was not - publicans were bound by important statutory duties, but owed no general duty of care at common law to customers requiring them to monitor and minimise the service of alcohol of protect customers from the consequences of the alcohol they consumed.

"That conclusion is correct because the opposite view would create enormous difficulties ... relating to customer autonomy and coherence with legal norms," they said.

Expressions such as "intoxication", "inebriation" and "drunkenness" were difficult to define and to apply, and it was hard for an observer to assess whether a drinker had reached that point.

"The point at which a drinker is at risk of injury from drinking can be reached in many individuals before [warning] signs are evident," the judges said.

"Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility.

"It is a matter more fairly to be placed on the drinker than the seller of drink."

Kirkpatrick told the Hobart Mercury that the High Court ruling was an "absolute relief".

The Australian Hotels Association said that while the case could not ease the pain of the tragedy for Scott's family, the ruling had helped to clarify the legal obligation publicans owed people who had been drinking.

But Australian Lawyers' Alliance president Mark Blumer told ABC radio that the ruling appeared to be in contrast to responsible alcohol laws.

"It's conservative in that it harks back to a different era in a way, that is, the era if you want to drink you can drink," he said.