Whether the [Licensee] Mr. Michael Andrew Kirkpatrick, had a duty and a responsibility to take care to avoid the intoxicated Person, Mr. Scott from departing the motorcycle from the hotel?
Is this is an exceptional case?
Is alleged duty required the Licensee to ring and inform Mrs. Scott to pick up Mr. Scott from hotel and drive him home?
Whether calling Mrs. Scott would have prevented the accident and death?
Tort of Negligence:
- Scott, wife of Mr. Scott instituted proceedings against Licensee of the hotel for breach of duty. The respondent that in a claim of negligence will only be liable to the applicant by way of if the following sections are confirmed on the balance of probabilities:
- Scott met an accident after leaving the hotel on a motorcycle. The licensee held the keys of motorcycle to Mr. Scott as he was refused to call Mrs. Scott in order to pick up Mr. Scott. The Licensee was owed a duty of care by the respondent in the situation. The Licensee had offered to ask Mr. Scott for his wife’s number. He had refused to provide him the number and requested for key. Even if there is a duty of care there is no breach in it. The Licensee was not able to call Mrs. Scott and ask her to pick up Mr. Scott from the hotel. This is an exceptional case as it holds legal services.Mr. Scott eliminated the fact that are related to the court analysis. He claims the injuries were reasonably foreseeable result of the business failures to provide security patrols.
- McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District (22 December 2013).
- Campbell v Northern Territory of Australia (13 February 2018).
The negligent party that is the Licensee breached his duty to Mr. Scott. There was alleged breach of duties.
- The licensee failed to ring Mrs. Scott to ask her to pick up Mr. Scott from the hotel: Mr. Michael Andrew Kirkpatrick,failed to take Mrs. Scott number from Mr. Scott to inform her on the situation. He Refused the Licensee’s permission to provide his wife’s contact and ask her to come to take Mr. Scott. He also got into a verbal violence with the Licensee, as he had asked to call Mrs. Scott. Calling and informing Mrs. Scott would have prevented the accident. There is also a balance of probability that Mrs. Scott may have attended the call. Scott contented that the Proprietor and the Licensee owed Mr. Scott a common law duty of care telephone Mr. Scott when her husband had finished consuming alcohol.
- Davies v George Thomas Hotels Pty Ltd (20 April 2010)
- The licensee was unable to delay and deflect to provide Motorcycle Keys to Mr. Scott: Mr. Scott consumed alcohol in that hotel with Mr Rex Kube, his workmate after work. Mr. Scott wanted his keys back and motorcycle to which the Licensee agreed. He was drunk and asked for the keys to which the Licensee could not refuse. Mr. Scott did not take lift from Mrs. Kube and was unable to identify any signs of intoxication in him. Mr. Scott was intoxicated and asked for his motorcycle keys, that he had submitted to the Licensee after he was acknowledged about a police breathalyzer near Orford. Delaying in providing keys to Mr. Scott may have prevented the fatal accident. It was the licensee’s understanding that Mrs. Scott would collect her husband from hotel later in the evening and retrieve motor bike in the next morning. Near about 8:15pm Mr. Scott’s friend had been collected from the hotel by his wife, the Licensee told Mr. Scott that he had consumed enough alcohol and she was asked for Mrs. Scott’s phone number to come and take her husband.
- Refusal to hand over the motorcycle was also an alleged breach of duty: It would have been an illegal act to refuse returning of motorcycle to Mr. Scott on his request. Mr. Scott met a road accident while driving motorcycle at around 8:30 pm after he drove off from the hotel (Witting, 2018, p.3).The second reason for rejecting the duty of care was found by the Full Court Majority or any qualified version of it that helps to lies in the following circumstances. It was claimed that duty extended to threaten physical force which helps to prevent Mr. Scott from obtaining the key of Motor cycle. There are some justification which are relied on the defenses of the torts but it is preventing the violence.
- Licensee did not drive Mr. Scott home himself: This cannot be a breach of duty as driving about 15 kilometers away from the hotel at that time was not possible. It cannot be supported that Mr. Scoot would have agreed to be driven home by the Licensee. He had already refused three times for a lift from Mrs. Kubes and also refused to provide his wife’s number to the Licensee. Driving Mr. Scott to home would have been a breach of contractual and statutory duties.
- Complied duty: The Licensee had already complied with his duty of care when he asked to call Mrs. Scott to inform her. The duty was already offered by the Licensee to Mr. Scott and this is not a breach of duty.
- Cole v South Tweed Heads Rugby League Football Club Ltd
Mr. Scott met a fatal accident due to the breach.
- Scott left the hotel and met an accident while driving his motorcycle around 8:30 pm. It was a fatal accident and was a matter of drunk and driving situation.
Laws and Acts:
Criminal Code (Tas), s 43, which provides:
Liquor and Accommodation Act 1990 (Tas), ss 62, 78, 79, 79A, 80
- The licensee tried to asks Mr. Scott to provide his wife’s contact to prevent him from driving his motorcycle. Mr. Scott denied to listen to and also got into a verbal violence with him. He asked for his keys and the Licensee had to give him the keys, refusing it would be an illegal act. The licensee had performed his duty to ask for Mrs. Scott’s number but was refused. Mr. Scott would not have listened to him any further if the Licensee had continuously tried to prevent him from driving.
- Licensee had inquired for Mrs. Scott’s contact number that was denied by Mr. Scott. Mr. Scott was agitated and got into a verbal violence with the Licensee as he insisted for Mrs. Scott’s number. Mr. Scott inquired for his keys and refused to the offer to call his wife. The Licensee would not have been able to extract Mrs Scott number from any other source as there were no records. He also denied serving more drinks to Mr. Scott after witnessing his behavior.
- Scott also refused to take lift from Mrs. Kube. In case the Licensee prevented him from riding his motorcycle he may have got into a serious verbal violence and further. The licensee may also get into an illegal act by not providing his motorcycle to him. Refusal from the Licensee would have further raised agitation of Mr. Scott and would have made the environment bitter. According to the case a police has a right to arrest Mr. Scott if that officer had some reasonable ground to arrest him. Mr. Scott had committed an offence by driving vehicle under the influence to the extent that he was incapable of having power control and direct him to deliver the keys of the motorcycle and to take such steps which is immobile to remove to a place of safety.
- This is also supported by the fact that the Licensee denied to offer drink to him when he asked for some more, after he witnessed his behavior at the hotel.
- Liquor and Accommodation Act 1990 (Tas), ss 62, 78, 79, 79A, 80.
- While a person is generally liable in tort for accident and death, this case is under ‘liquor and accommodation’, exception, whereby Mr. Scott met a fatal accident while driving the motorcycle in an intoxicated state.
- Neighboring principle: Established a duty of care in a hospital in McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District (22 December 2013). Even if there is a duty of care a breach cannot be supported.
- Ring Mrs. Scott: The licensee asked for Mrs. Scott’s number to inform her on the situation. Mr. Scott refused to this thrice. Mr. Scott also got into a verbal violence with the Licensee on offering to ring his wife in order to drive Mr. Scott home. The Licensee would have asked Mr. Scott to ring his wife himself and would have also further insisted on asking for Mrs. Scott’s number.
- A tort of negligence in hotel, Davies v George Thomas Hotels Pty Ltd (20 April 2010) (Jade.io, 2019).
- Delay, deflect, stall or manifest some resistance: The License would have managed to delay Mr. Scott’s departure from the hotel. He would have also reflected in providing the keys to him immediately after he failed his attempts to ask for his wife’s number. The Licensee would have resisted from opening the store room for Mr. Scott at such a short instance. He would have delayed a bit more than simply providing him the keys.
- Refusing to give back the motorcycle and keys: The Licensee would have denied giving back the motorcycle and keys to Mr. Scott and also refusing to give the keys. Refusing to hand over the motorcycle can be stated as an illegal act. Refusing to provide the keys may have also created a better environment in the hotel. Mrs. Scott was made thrive whether he was right to ride the motorcycle (Erbacher, 2017, p.32). Mr. Scott stated that he was all rights and asked for the keys. According to the road safety laws it is an illegal action to drive in an intoxicated state. The Licensee had tried to prevent this earlier but Mr. Scott refused to accept his offer. The traffic act ensures that the police has the right to arrest the person who is intoxicated and not in ansts to drive a vehicle.
- Criminal Code (Tas), s 43,
- Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 4, 5(1)
- Traffic Act 1925 (Tas), s 41A
- Inability to drive and leave Mr. Scott back home himself: The Licensee did not go to leave Mr. Scott himself after witnessing such situation. He offered the keys to Mr. Scoot and took the risk to allow him to ride a motorcycle in an intoxicated state. Driving 7 Kilometers away from the hotel would not have been convenient as he was the caretaker of the hotel. Mr. Scott had already refused Mrs. Kube for a lift home and it was believed that he would have simply refused to the Licensee’s offer to drive him home. It can also be assumed to be matter of breach of contractual duties of the Licensee to leave his hotel and post (Stephens et al. 2017, p.242). There are some issues which are connected with an individual autonomy and responsibility. Virtually all knows that the progressive drinking increasingly impairs one’s judgement and capacity to care for oneself.
- The Licensee had complied with his duty earlier: The licensee had offered to ring Mrs. Scott to which he was refused by Mr. Scott. This can be supported by the fact that Mr. Scott spoke violently in front of Mr. Thirlway while the Licensee was offering to ring his wife. Thus, an early compliance of duty is supported by these facts. A further problem of some legal coherence arises where legislation compels a publican to eject a drunken customer but the negligence requires the person safety to the safeguard by not permitting the person to drive or to walk along in the busy roads and it requires the person to be detained by some means. Even if the customer wants to leave the publican is caught between the dilemmas of committing the torts of some false imprisonment.
- Cole v South Tweed Heads Rugby League Football Club Ltd, discharge to Mrs Cole a duty of care was provided by the club and offered a safe transport for her to reach home (Jade.io, 2019).
- Howard v Jarvis (1958)
- Scott met an accident while riding back home from the hotel in an intoxicated state.
- It was a fatal accident and Mrs. Scott was armed later about the matter.
- Causation: The licensee would have delayed to provide the keys for motorcycle and would have insisted for Mrs. Scott’s number. The Licensee could not prevent Mr. Scott from riding the motorcycle in an intoxicated state.
- Balance of Probabilities: the Balance of probabilities included that Mrs. Scott would have attended the call or not in case there was a call made by the Licensee. The probability was high as Mrs. Scott was already worried for her husband’s late arrival.
- Exceptional case: This cannot be a pure exceptional case as the Licensee had offered his duty to Mr. Scott earlier.
Licensee may be responsible in tort for negligence in duty for allowing an intoxicated person to ride a motorcycle. The licensee is unlikely to be responsible in tort for a breach in duty as he had complied his duty earlier to Mr. Scott. He had offered a ring to Mrs. Scott to ask her to pick up Mr. Scott from the hotel.
The Licensee is not responsible for negligence of duty to the fact that he refused to offer drink to Mr. Scott after witnessing his behavior. This comes under the Liquor and Accommodation Act 1990 (Tas), ss 62, 78, 79, 79A, 80. The damage caused and fatal accident of Mr. Scott was a major negligence of road safety and traffic rules. The Licensee has less liability on this case as Mr. Scott was offered duty of care and refused several times.
Erbacher, S., 2017. Negligence and illegality. Bloomsbury Publishing.
Stephens, A.N., Bishop, C.A., Liu, S. and Fitzharris, M., 2017. Alcohol consumption patterns and attitudes toward drink-drive behaviours and road safety enforcement strategies. Accident Analysis & Prevention, 98, pp.241-251.
Witting, C., 2018. Street on Torts. Oxford University Press.
Jade.io, 2019, Australian Legal Judgements, Available at: https://jade.io/article/119590?at.hl=C.A.L.+No+14+Pty+Ltd+v+Scott [Acessed on: 25/08/19 ]