Duty of care explained

Duty of care is a broad ranging legal principle. Stated simply, it means that one must take reasonable steps to ensure their actions do not knowingly cause harm to another individual.

In such cases, the courts look to:

the nature of the relationship between the parties;
whether the incident resulting in harm was reasonably foreseeable; and
the proximity or causal connection between one person's conduct and the other person's injury.

What is Negligence?

Negligence is carelessness. A failure to take reasonable care for the safety or well-being of others. Negligence actions are not an exercise in perfection but rather address issues of “reasonableness” or, put simply, what the reasonable person might have done or not done in the circumstances of a particular case.

The law of negligence entitles a person to receive compensation, for loss or damage, as a result of someone else’s actions where that person breaches a recognisable “duty of care.”

Duty of care is an obligation to take reasonable care to avoid causing foreseeable harm to another person or their property. In general terms negligence can be established if the plaintiff can prove:

the defendant owed them a duty to take reasonable care; and
the defendant breached that duty; and
the defendant’s breach of duty caused the injury or damage suffered by the plaintiff; and
the injury or damage suffered was not too remote a consequence of the breach of duty.

Damages

The money paid in compensation for loss suffered in a civil matter is called damages and can include medical fees, loss of income, pain and suffering.

If more than one party is involved, it will be assessed as to what degree they each contributed towards the loss. The damages will be allocated accordingly. If the plaintiff’s own actions have contributed towards the loss, their contributory negligence will be considered as part of the overall damages.

Do licensed premises owe their customers a duty of care?

To date the courts have not imposed a duty on licensees to exercise reasonable care to prevent an intoxicated patron from harming themselves. The law has left it to responsible adults to take responsibility for their own actions. The exception to this would be where a person becomes so intoxicated as to be incapable of any rational judgement or of looking after themselves.
It is generally accepted that a licensee has a duty to take reasonable care to avoid foreseeable risk of injury to patrons deliberately caused by the acts of other patrons.

In April 2000 in the County Court of Victoria, a judgement of approximately $500,000 was made against a Victorian licensed club. The court found the club liable for an incident where a riotous crowd seriously assaulted a police officer, who had been called to assist in maintaining order at a social function being held at the club.

The police had attended earlier in the evening and noted a number of patrons to be highly intoxicated however security staff recorded no ejections of persons whatsoever during the evening. Violence had also occurred between rival groups of patrons and the venue requested the police to attend later in the evening. The behaviour of some patrons continued to degenerate during the evening, however the police were not advised of this prior to their return. The venue also continued to serve alcohol to all patrons and took no obvious action to limit intoxication.

The court found for the plaintiff (the police officer). Key elements to this case were:

A number of guests were significantly affected by alcohol.
Lack of action by the licensee to cease service of liquor to intoxicated patrons.
An escalation of anti-social behaviour that crowd controllers did not take sufficient action to curtail.
Failure to alert police to the severity of the situation to which they were being called.

Lessons to be learnt from this case include:

Liquor must be served responsibly on licensed premises.
Adequate security should be employed to meet the demands of the type, length and numbers attending.
Security staff must act to resolve potential problems.
Police must be provided with enough information to appropriately respond to an incident of concern to the licensee.

It should also be noted, there were issues about the management of the venue and had an appropriate system of security been implemented, the police officer, in all probability, might never have been damaged.

In another case that was settled out of court in 2001, a barman was also responsible for security at a suburban hotel. He had never been trained in crowd control or other security techniques or responsible serving of alcohol. A patron whom regularly attended the hotel had a history of alcohol abuse and was frequently involved in altercations with other patrons at the hotel. The barman knew this patron and had removed him from the hotel the previous week. The following week, an altercation occurred involving the troublesome patron that necessitated the barman having to intervene. The troublesome patron was highly intoxicated and threatening another patron with a billiard cue. As the barman approached, the tip of the billiard cue penetrated his eye causing death. His daughter’s litigation guardian sued and the case was settled for a substantial, but undisclosed, amount.

Issues in this case included:

Inappropriate service of alcohol to a patron with a history of violence, alcohol abuse and causing trouble.
A poor system of security including lack of training.
Poor management practices at the venue.

After this case, the venue was also prosecuted under occupational health and safety law. It was found guilty and a substantial fine imposed.

Conclusion

The above cases reflect the need for the following:

Adequate staffing levels;
Solid management, supervision and training strategies.
Compliance with written policies and procedures.
Addressing intoxication in the early stages.
Strict compliance with RSA philosophies.
Reporting, debriefing and staff induction strategies.

Cole v South Tweed Heads Rugby League FC

On 15 June 2004, the High Court of Australia dismissed an appeal in the case of Cole v South Tweed Heads Rugby League Football Club Limited. The appeal was made against a decision of the NSW Court of Appeal which set aside a previous decision that had awarded damages to Ms Rosellie Cole.

The facts of the case include:

Ms Cole commenced drinking at the club, at a champagne breakfast, sometime between 9.30am and 10.00am.
There were rugby games occurring throughout the day and Ms Cole was coming in and out of the club.
Ms Cole did purchase a bottle of wine from the club at 12.30pm.
At 3.00pm she was refused service by the manager's wife.
At 5.30pm the manager asked that she leave the premises, offering a courtesy bus or taxi. She bluntly refused this offer and left shortly afterwards with 2 males who said they'd "look after her".
At 6.20pm she was hit by a 4WD 100 metres from the premises; suffering serious injury.

Ms Cole claimed that the club was negligent because it continued to serve her when she was obviously intoxicated and allowed her to leave their premises in an intoxicated state.

By a 4-2 majority the court ruled that Ms Cole was responsible for her own actions.

Justice Callinan, who was part of the majority, held as follows: “Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess. The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law.”

The decision of the High Court confirms the findings of the NSW Court of Appeal. In doing so they found that, on the facts of the case, it was not appropriate to consider whether a general duty of care is owed by a licensee towards intoxicated patrons. However, it certainly assisted the club that responsible serving of alcohol principles were adhered to.

Justice Callinan noted that it was of "particular significance" that:

When Ms Cole was served at 12.30pm it was not yet apparent she was intoxicated.
There is no evidence that the club had served liquor to Ms Cole after that time.
At 3.00pm when she did attempt to be served, and was obviously intoxicated, that service was refused.
The manager had offered her assistance home via courtesy bus or taxi.

In a dissenting decision Justice Kirby stated that the club had done "too little, too late" and had breached its duty of care to protect Ms Cole from foreseeable risk of harm.

The main lesson to be gained from this decision is that each case will be judged on its merits, but it certainly assists a licensee’s case if they have taken proactive steps to ensure liquor is not sold to obviously intoxicated patrons and have made attempts to assist intoxicated patrons to get home safely.

To read the judgement go to: