A recent decision in the District Court has continued the trend of exonerating licensees from claims for damages following injuries resulting from alcohol related incidents.
Mr Weston, the plaintiff, had been drinking at the Princess Road Tavern for three or four hours. He became aggressive towards a barmaid after she refused him service and reached out across the bar towards her. The approved manager believed the plaintiff might attack the barmaid and so ‘gave a sharp, short tug at the back of the plaintiff’s shirt, and at the same time the plaintiff was pushed in the chest by a friend.’ The plaintiff’s leg became stuck in the ash tray and the force of the approved manager and friend combined with the plaintiff’s own drunkenness caused the plaintiff to fall backwards, breaking both bones in his lower leg.
The plaintiff sought damages from the licensee on the basis that it was vicariously responsible for the negligence of its employees.
The Court found ‘that the defendant and/or its servants had not been in breach of any duty of care by negligently serving Mr Weston alcohol up until when he was refused service and were under no duty to remove him from the premises.’ This was because the Court was not persuaded in the circumstances that the barmaid ‘ought to have refused service any earlier than she did.’
The Court also found that the actions taken by the approved manager were reasonable given the imminent possibility that the plaintiff would jump over the bar and harm the barmaid.
This decision is consistent with some High Court cases involving people who have been drinking at licensed premises and then suffer injuries from an accident or incident which has occurred due to their liquor consumption. Duty of care under the common law is not the same as the liquor legislation. However, the Weston decision should be further comfort to licensees.
If you have any other queries about this decision, please do not hesitate to contact Dan Mossenson, Partner on (08) 9288 6769 / dan.mossenson@lavanlegal.com.au or Jessica Patterson, Senior Associate on (08) 9288 6946 / jessica.patterson@lavanlegal.com.au.
