Alcohol Server Liability in NSW

Alcohol server liability in NSW is an important issue contained in the cases of Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29 and C.A.L. No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47 and the Registered Clubs Act 1976 (NSW). The concept basically asks whether a supplier of alcohol has a duty to monitor and moderate the amount of alcohol served to customers and to ensure that an intoxicated customer leaves the premises safely. We can ask several key questions about alcohol server liability, the most pertinent ones being: Is it practical to impose such a duty on alcohol suppliers?, Can the interests of public health be an overriding factor to allow the existence of such a duty? and To what extent does personal autonomy play a role in denying the existence of such a duty?

The facts in Cole can be summarised as follows: Rosallie Cole was a mature woman who attended the respondent's premises for an all-day drinking binge. She began drinking at 9.30 or 10am, and proceeded to continue drinking right through the day. There is no evidence that the respondent supplied her with any alcohol after 12.30pm, but when her friend (Mrs. Hughes) left at 2.30am, Ms. Cole was described as being 'very joyous and happy', 'an embarrassment' and 'totally inebriated', but capable of directing a taxi driver where to take Mrs Hughes, and of making clear her decision to remain at the club. (per Gleeson CJ) At about 6.20pm later that evening, Ms. Cole was hit by a car on the motorway she was drunkenly walking along on after leaving the respondent's premises , and it was made clear during legal proceedings that there is no way that the motorist could've avoided running into her. She suffered serious injuries. Ms. Cole brought an action in negligence, claiming that the respondent owed a duty of care to monitor the respondent's alcohol consumption and also that they owed a duty of care to ensure that Ms. Cole travelled safely away from the premises.

Almost immediately, even before reading the majority judgements, I can state that my views are that it is no one else's fault save for Ms. Cole's that she was hit by that car. She was directly and personally negligent on herself. Yet, the majority judgements to dismiss the appeal with costs has been greeted with disapproval and disdain by some parties who claim this is a step backwards for public health. Critics have argued that the decision, which weighed heavily on issues of personal freedom and autonomy, was wrongly decided. Penelope Watson in her 2004 article stated: '... an individual's decision to drink to excess must be seen as going well beyond the limits of personal autonomy, and intruding into the collective sphere.' (from the article Am I My Brother's (or Sister's) Keeper?: Alcohol Server Liability and Cole v South Tweed Heads Rugby League Football Club) .

So does it intrude into the collective sphere so much to justify the creation of an artificial legal duty for suppliers of alcohol? Some would say that there is a moral duty to do so, but as far as a legal duty goes, the jurisprudence is reluctant to say that there is one. Gleeson CJ stated at Para 12 of his judgement: '... To impose on suppliers of alcohol a general duty to protect consumers against risks of injury attributable to alcohol consumption involves burdensome practical consequences... The capacity of a supplier of alcohol to monitor the level of risk to which a consumer is exposed is limited...'

Earlier in the judgement, the Chief Justice states: '... it is to be noted that they involve failure to restrain or prevent the appellant from engaging in voluntary behaviour...' (at Para 3). It is these two paragraphs that have struck me the most in coming to my conclusion about this case and alcohol server liability in general. They have also gotten me thinking about several scenes that I have witness outside entertainment outlets in Kuala Lumpur, Malaysia. As far as I know, there is very little emphasis on alcohol server liability, and there is little or no public awareness of this issue. I have seen highly intoxicated persons get into insane fights involving knives and other weapons outside clubs. I have seen them totter along highways, unaware of their surroundings, much like Ms. Cole.

My professor at Sydney University would say that I have the Tony Abbott view of this issue, in that I believe that people are responsible for how much they drink, and the state should interfere sparingly. Imposing a duty on suppliers of alcohol seems far, far too onerous. Alcohol suppliers dont have the time and resources to mother everyone about their alcohol consumption and such mothering is unlikely to be welcomed by patrons. It must be noted that s44A of the Registered Clubs Act 1976 (NSW) also plays an important role in the state's influence on this. The provision makes it an offence to supply liquor to an intoxicated person, and I suppose, that it comes down to how you draw the line and define the word 'intoxicated'.