Wednesday, November 11, 2009

Too much to drink? Sorry, your problem

In something of a landmark decision the Australian High Court has gone against the legal flow, so to speak, in ruling that a publican does not necessarily owe a duty of care to alcohol-consuming patrons. The decision relates to a 2002 fatal incident in Tasmania.

Shane Scott was drinking at the Tandara Motor Inn, consuming seven or eight cans of premixed bourbon and cola over three hours. Upon being told it was time to call it a night Scott demanded the return of his motorcycle keys, held for safekeeping by the publican. The publican was reluctant to hand over the keys, ultimately doing so after some considerable pressure from Scott. Scott rode off to his death; his blood alcohol reading was .253 (the legal limit is .05). His wife sued claiming negligence.

As the ruling has potentially cut off a source of income, some in the legal profession are, well, upset:

[The ruling is] 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.

Society doesn't really agree with that.

A person's decision to drink is his alone, as is the decision when to stop because you've had enough. Since such responsibility can't be delegated it's unreasonable to ask publicans to monitor and manage their patrons' alcohol consumption.

It is argued that the publican should have refused to return Scott's keys, if necessary restraining him to prevent him from driving - in this instance illegally retaining Scott being justified in light of his ultimate death. This argument is absurd: it is reasonable to expect that Scott, already verbally aggressive, might have become overtly physical. It is unreasonable to expect a publican to risk life and limb, not to mention the prospect of being sued, in order to prevent a patron from acting on a bad decision. Thus the High Court decision is a victory for common sense.

In tangentially related news professor David A. Kessler at the University of California at San Francisco has discovered a sinsiter plot hatched by American food manufacturers (Big Food) and restaurants to provide “hyperpalatable” food in big portions at reasonable prices, these low cost delectables causing Americans to over-eat:

With its ability to create superstimuli, coupled with its marketing prowess, the industry has cracked the code of conditioned hypereating and learned exactly how to manipulate our eating behavior. It has figured out the programming that gets us to pursue the food it wants to sell.

Here is my handy weight control suggestion: when you notice you're putting on weight, put down the fork, or the chopsticks, as the case may be, because if we don't exercise self-control the food Nazis will intervene.

Note: The untimely death of Shane Scott was an unfortunate tragedy. I offer my heartfelt condolences to his family and do not intend this post to make light of their loss.


Anonymous Legal Eagle said...

Agreed, Becky. There is a limit to which you can expect someone to be their brother's keeper. What really got to me about the Tasmanian Full Court decision is that it did not gel with existing property law, tort law or criminal law - so effectively, the licensee would be required to commit a tort or crime (battery, assault, detinue) to stop a tort. There was a particular problem because Mr Scott could have used reasonable force to vindicate his right to possession of the motorcycle.

It's such an awful case, though, because there were a number of points when one senses it might have turned out okay if Mr Scott had just accepted his friend's repeated offers of a lift, or allowed the licensee to call his wife. Poor man, he paid a terrible price for his stubbornness, and so did his wife.

4:09 PM  

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