Scott v CAL 256 ALR 512 — Case Note


This is a case note that I wrote for my first year subject “Legal Method and Research” on the case

Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (CAN 009 504 0081) and Another (No 2) (2009) 256 ALR 512

We were required to write a case note, but were given several questions as well: e.g. what policy considerations could have been taken into consideration, etc.  This case note was subsequently reproduces in the UTS “2011 Mentoring Guide” and “2011 International Student Legal Mentoring Handbook.”  Note that this case has subsequently been re-decided by CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 in the High Court.

[Bob Burman, race car driver] (LOC)

Driving with beer goggles

Part A: Case Summary

Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) and Another (No 2) (2009) 256 ALR 512; [2009] TASSC 2 (“The Case”)

Motor Accidents Insurance Board[1] v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) (No 2) (2009) 256 ALR 512; [2009] TASSC 2

The parties to The Case were: appellants, Scott and the MAIB; respondents, the Tandara Motor Inn (“the Hotel)[2] and Kirkpatrick[3].

Scott, widow to the deceased, brought actions against the Hotel and Kirkpatrick (the licensee) in the Tasmanian Supreme Court[4] under the Fatal Accidents Act[5].  The MAIB filed suit in parallel in order to recover compensation paid to her. The cases were consolidated. The Supreme Court found of Tasmania for the defendants[6].  The decision was overturned on appeal[7]. High Court “Special Leave” was granted[8].

On 24/01/2002, Scott went to the Hotel.  Upon arrival, he continued to drink (having drunk at his workplace).  Kube suggested that they store Scott’s motorbike in the, store-room, which they did, Kirkpatrick keeping Scott’s keys.  At 8:00pm, Kirkpatrick told Scott that he had enough (after 9 drinks), and offered to ring Scott’s wife, which Scott refused.  Scott asked for his motorbike, which Kirkpatrick gave him.  On the ride home, Scott rode into a bridge, dying.  There was evidence of marijuana and alcohol in his blood[9].

The debate surrounds the duty of the hotelier to patrons where a special relationship is apparent.  Furthermore, the possible actions of a reasonable person in the circumstances were questioned[10].

The Tasmanian Supreme Court found that the trial Judge had erred.  This was based on their finding that the Hotel and Kirkpatrick had a duty of care to Scott, due to his position of control[11], an exceptional relationship as allowed for in Cole.  The argument regarding “Bailment” [12] was found to be a post-hoc justification.

The Court accepted the appeal, nullified the previous judgment in favour of the respondents and provided for further court orders[13].

Part B: Analysis of Legal Reasoning

In Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) and Another (No 2) (2009) 256 ALR 512 (“The Case”), there was a two to one majority favouring the appellants; Crawford CJ dissenting against the judgement of Evans and Tennent JJ.  Thus, two conclusions require consideration.  Analysis of these allows the extraction and evaluation of different legal policies.

The majority found that the trial judge had erred[14], as delineated by the eight points of appeal. The first three dealt with the scope of the duty of hotelier to patron as outlined in South Tweed Heads Rugby League Football Club Ltd v Cole and Another[15].  The final points deal with the legality and reasonableness of the actions expected of the hotelier.

Evans defines his decision as an exception based on the complexities of the Case’s facts.  He starts by establishing a duty from entrant to occupier and extends this[16].  To extend this to the duty of the licensee over the actions of the intoxicated patrons, Evans cited the judgments of McHugh J and Kirby J in Cole v South Tweed Heads Rugby League Football Club Ltd and Another[17] (“Cole”).  McHugh J extended the duty “to injury that is causally connected to ingesting [alcoholic] beverages”[18].  However, this was Obiter, and, thus, not binding.   In Cole, Gleeson CJ states that his decision was founded “in the circumstances of this [specific] case”[19].  The facts of Cole provided challenges to a duty of care that were not present in The Case: scale preventing the intimacy where a duty of care was implicit.  However, here, the issue “[has] little bearing”[20]: there were few patrons, and the deceased was known[21].  Evans states that duties of care are determined by relationships[22].  Kirkpatrick involved himself in organising Scott’s way home[23] and was in possession of his keys; therefore, the relationship was apparent[24].  By distinguishing The Case from Cole, and by highlighting the relationship between Scott and Kirkpatrick, as required by Roads and Traffic Authority of New South Wales v Dederer[25], Evans established the duty of care of the respondants to the deceased.

Tennent J also concluded that there was a duty of care apparent.  However, he came to this conclusion in a slightly different manner.  Whereas Evans excluded this case from the precedent set by Cole, Tennent J allowed for The Case within Cole’s allowance for exceptions[26]by classifying the relationship as exeptional[27].

For the appeals to be upheld, the duty extracted must have been breached.  This requires reasonably forseeable damage caused by the act or ommission of the respondant.  Evans and Tennent J agreed: considering that Kirkpatrick stopped serving the deceased alcohol[28], a reasonable person in his position would would not have returned his keys.  The trial judge, as well as Crawford CJ found that witholding the motorbike could have legally been met with force. Evans[29] and Tennent J[30] reject this.  Evans states that Kirkpatrick would have“obviat[ed] the risk”[31] had he acted as a reasonably, offering resistance to the return of the motorbike.  In The Case, the judges in  majority established a duty of care was breached according to Wyong Shire Council v Shirt[32] (“Wyong”), since a reasonable person would have acted with greater care in the same situation.

Crawford CJ agreed with the trial judge on the matter.  This was based on his finding that there was not an apparent duty, as set out in Cole, and that Kirkpatrick acted reasonably.  For a duty to exist in a case so similar to Cole, the case must be differentiated.  Crawford CJ found the relationship between Kirkpatrick and the deceased to be normal.  He rejects that Kirkpatrick organised that the motorbike to be put away[33].  Kirkpatrick thus exempt from organising the deceased’s means of egress, and not the powerful position described by Evans.  This relationship was not exceptional; thus, the ruling in Cole[34] was binding.

Crawford CJ discusses the reasonability of Kirkpatrick’s actions.  He posits that Kirkpatrick acted reasonably, attempting to stop the deceased from riding away, and that any more would be unreasonable to expect.  Kirkpatrick offered to ring the deceased’s wife to pick him up and was rudely rejected[35].  When asked for the keys, Kirkpatrick asked if Scott was “right to ride”[36], to which the deceased repeatedly answered affirmatively.  Crawford CJ found the sum of Kirkpatrick’s actions reasonable, stating that it was unreasonable to expect any further action.  He considered it unreasonable to expect that Kirkpatrick call the deceased’s wife without permission[37] or to prevent the Scott from accessing his motorbike.  As per the Criminal Code[38], if denied access to his wife’s bike, the deceased could have legally used force against Kirkpatrick[39].  It is unreasonable to ask Kirkpatrick to put himself in danger.

Finally, when asking about the legality of Kirkpatrick keeping the keys, and the lack of criminal liability if he had withheld them[40], Crawford CJ dismissed it as having nothing to do with obligation[41].  Crawford CJ established that the facts lent themselves to a non-existent duty of care.  Furthermore, even given its existence, Crawford CJ claims that it had not been breached.

The majority extends the hotelier’s duty in specific circumstances, whereas the dissenting limits it as per Cole.  Each judgement has different policy ramifications.  The policies affected include the scope of negligence and the economics of increased liability.  The trial judge rejected the authority of Canadian decisions (subsequently followed by the Queensland Supreme Court)[42] which had been used by plaintiff, because of policy: an irreconcilable difference in culture and legislation[43].  The decision implied a rejection of the further expansion of the duty of care of a publican, as supported by Crawford CJ in his dissenting judgment: “an extension of the duty of care is undesirable”[44].  The majority judgement pursues the remove of artificial definitions of the limits of duties of care, agreeing with Gleeson CJ in the judgement of Cole, whereby the duty is established within each case[45].  Since there is a causal link between the actions of the respondents and the death, the neighbourly principle[46] requires an expansion of duty of care to allow for cases such as this.  There is implicit in these exceptions and expansion of duty of care.  The flexibility protects the patrons, as is the purpose of the law of negligence.  However, this creates vagueness in the law which is contra to the transparency required for justice[47].  However, there is rule, as outlined in Wyong[48] allowing for a clear, just and moral expansion of duty of care.

This decision is economically damaging.  Personal injury claims rose by 6-8%[49] since 2007 in cases to do with on-road accidents.  The decision proposed by Evans and Tennent J would shift part of this burden onto licensees.  If business was the only policy consulted, a ruling for the respondent would seem ideal.

The role of negligence is protecting people from foreseeable damage with all reasonable action.   In The Case, the respondents did not act in this way.  Since justice and morality should outweigh economic considerations in the law, the judgement of the majority seems both just and convincing.

Bibliography

Articles – Books – Reports

  • Butt, Peter BA LLM(Hons)(Syd) et.al. (eds), ‘Butterworths Concise Australian Legal Dictionary’ (2004).
  • ICWA, ‘Number of Personal Injury Claims Receives’ (1009) <http://www.icwa.wa.gov.au/mvpi/crash/mv_statsclmdt.pdf&gt; at 28/08/09.
  • Westen, Peter, ‘Two Rules of Legality in Criminal Law’ (2006) 26(3) Law and Philosophy 229-305.

Cases

  • CAL No 14 Pty Ltd T/as Tandara Motor Inn & Anor v MAIB [2009] HCATrans 113.
  • Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52.
  • Donoghue v Stevenson [1932] AC 562.
  • Gollan v Nugent (1988) 166 CLR 18.
  • Johns v Cosgrove (1997) 27 MVR 110.
  • Jordan House Ltd v Menow (1973) 38 DLR (3d) 105.
  • Motor Accidents Insurance Board v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) (No 2) (2009) 256 ALR 512; [2009] TASSC 2.
  • Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222.
  • Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330.
  • Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512; [2009] TASSC 2.
  • Scott v CAL No. 14 Pty Ltd [2007] TASSC 94.
  • South Tweed Heads Rugby League Football Club Ltd v Cole and Another [2002] 55 NSWLR 113.
  • Wyong Shire Council v  Shirt (1980) 146 CLR 40.

Legislation

  • Criminal Code Act 1924 (TAS).
  • Fatal Accidents Act 1934 (TAS).

[1] The Motor Accidents Insurance Board

[2] CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) (“The Hotel”)

[3] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, 512.

[4] Scott v CAL No. 14 Pty Ltd [2007] TASSC 94.

[5] Fatal Accidents Act 1934 (TAS).

[6]“I determine that the death of the deceased was not the result of actionable negligence”: Scott v CAL No. 14 Pty Ltd [2007] TASSC 94, 9.

[7]“That the appeals be allowed.  That the judgments in favour of the respondents be set aside”. Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, 532.

[8] CAL No 14 Pty Ltd T/as Tandara Motor Inn & Anor v MAIB [2009] HCATrans 113.

[9] Synthesized from Scott v CAL No. 14 Pty Ltd [2007] TASSC 94, 1 and Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, 512-13, 514-16.

[10] Ibid. 512, 513 (see numbered list (i) through (viii)).

[11] “Kirkpatrick took on a role … that went way beyond the normal relationship between a hotelier selling alcohol and a patron” Ibid. 526, this differentiating the case from Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52 where no special relationship existed.

[12] The rights to property in the trust of another, Peter BA LLM(Hons)(Syd) et.al. (eds) Butt, ‘Butterworths Concise Australian Legal Dictionary’ (2004), at [73].

[13] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, 532.

[14] In Scott v CAL No. 14 Pty Ltd [2007] TASSC 94.

[15] South Tweed Heads Rugby League Football Club Ltd v Cole and Another [2002] 55 NSWLR 113.

[16] Evans accepts the duty between entrant and occupier as a common law principle, and extends it through the licensed establishment’s requirement of protection against violence via the cases listed, Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [46].

[17] Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52.

[18] Ibid. at [31].

[19] Ibid. at [9].

[20] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [47].

[21] Ibid.

[22] “duties of care … may be more or less expansive depending on the relationship in question” in the decision of Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, at [43].

[23] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [50].

[24] “Kirkpatrick took on a role … that went way beyond the normal relationship between a hotelier selling alcohol and a patron” Ibid.

[25] Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330.

[26] “the defendant did not owe the deceased any duty … unless there was some reason to treat this as an exceptional case in which some duty did exist” South Tweed Heads Rugby League Football Club Ltd v Cole and Another [2002] 55 NSWLR 113.

[27] Kirkpatrick controlled the deceased’s alcohol intake and “his egress from the hotel and the means of transport he used” Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [64].

[28] Ibid. at [71].

[29] “this issue is one of reasonableness not legality” Ibid. at [56].

[30] “It is implausible to suggest that either of the men gave any thought at all to those issues.  They have, with respect, been raised in hindsight to justify what actually happened” Ibid. at [73].

[31] Ibid. at [55].

[32] (1980) 146 CLR 40, at 220 – 2.

[33] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [10].

[34] “That the voluntary act of drinking … be regarded as a deliberate act … for which that person should carry personal liability” Ibid. at [25].

[35] Ibid. at [13].

[36] Ibid. at [16].

[37] Ibid. at [21].

[38] Criminal Code Act 1924 (TAS) at S45. As quoted in Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [31].

[39] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [31].  Furthermore, at [35] Crawford CJ finds that there were no conditions implied in that Kirkpatrick was the sub-bailee of the motorbike, and that he had no right to refuse the deceased access.

[40] As defined in Gollan v Nugent (1988) 166 CLR 18. whereby a passenger is not required to return the keys of an inebriated driver.

[41] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [41].

[42] With Johns v Cosgrove (1997) 27 MVR 110. following the Canadian precedents of Jordan House Ltd v Menow (1973) 38 DLR (3d) 105 and Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222 which delineate a bar’s extended duty of care to its patrons.

[43] Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [63].

[44] Ibid. at [28].

[45] Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52, at [9].

[46] Lord Atkin’s neighbourly principle founding negligence, as based on the Christian ideal of “love thy neighbour”.  In essence, that you had a duty of care for your neighbour, with neighbour defined as someone who is directly and predictably affected by your actions, Donoghue v Stevenson [1932] AC 562, at 580.

[47] As per Hart’s provisions for just laws, as reflected on in Peter Westen, ‘Two Rules of Legality in Criminal Law’ (2006) 26(3) Law and Philosophy 229-305, at 229, 230.

[48] Requiring the respondent to act as a reasonable person in order to avoid negligence claims.

[49] Predicted from mid-year results ICWA, ‘Number of Personal Injury Claims Receives’ (1009) <http://www.icwa.wa.gov.au/mvpi/crash/mv_statsclmdt.pdf&gt; at 28/08/09.

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