5 minute read
Patron Car Keys and Your Duty of Care
by Boylen
BY GARY COPPOLA, AHA | SA MANAGER – LEGAL AND ADVOCACY
It’s a busy night in the hotel. A regular patron is enjoying a few drinks, and after a while he drops his car keys over the bar and says “Don’t let me drive, OK? I’ll get a lift home”.
Later, he is one of the last remaining, and his lifts have disappeared. No taxis are available. He demands his keys back.
What do you do? What, if any, is your “duty of care”?
You may remember a case on Kangaroo Island where a patron tragically died after a vehicle accident - He had consumed 22 drinks in 9 hours and was sold a six pack of rum cans as he left. His BAC was found to have been 0.292. In that case, the RP on duty was alleged to have consumed 2 bottles of wine during his shift.
The hotel and the RP were charged with 7 counts of serving to an intoxicated person, to which guilty pleas were entered. However, there was nothing said about a duty to try and prevent an intoxicated patron from driving, and there were no reports that the hotel had been sued for allowing him to drive.
I am reminded of a more directly relevant case that happened in Tasmania many years ago.
On 24 January 2002, Shane Scott went to the Tandara Motor Inn in Triabunna for a drink after work. He remained there for about three hours, consuming alcohol. He left the motor inn on his motor bike to ride to his home in Orford. As he approached the Prosser River bridge, he lost control of his bike, collided with the bridge and was killed. His widow, Sandra Scott, sued the owner and licensee of the motor inn, alleging they owed her husband a duty of care. The Motor Accidents Insurance Board sued the same parties to recover benefits it had paid out arising from Mr Scott's death.
At the time of his death, Mr Scott had a blood alcohol level of 0.253. At trial, Mrs Scott and the MAIB asserted that the defendants owed a duty of care to Mr Scott arising out of the service to him of alcohol while he was at the motor inn and then facilitating his use of his motor bike to drive away from the inn, making no attempt to stop him doing so. Before he commenced drinking, he secured his motorcycle in a lockup room, as there was a rumour that a breathalyser unit was set up nearby. The vehicle’s keys were placed in the petty cash tin. Some time later, another patron offered Mr Scott a lift home, which he refused. He also refused to have the licensee call his wife to come and collect him.
He demanded that his keys and the bike be returned to him. After several conversations about his ability to drive, the licensee returned his property. Mr Scott died in the crash soon after.
The High Court decided that there was no duty to prevent him driving, nor a duty to call his wife. Three of the judges remarked:
The reason [that there is no duty] is that outside exceptional cases, which this case is not, persons in the position of the Proprietor and the Licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume. That conclusion is correct because the opposite view would create enormous difficulties…
Nor was there a duty owed to the world at large to prevent him from driving:
The conclusion that, save in exceptional circumstances, publicans owe no duty of care to their customers in relation to how much alcohol is served and the consequences of serving it says nothing about whether publicans owe a duty to third parties who may be damaged by reason of the intoxication of those customers. Defendants owe duties of care not to the world, but to particular plaintiffs….
Hence the legal position is that no duty is owed save in exceptional circumstances, and the Court did not identify what they might be.
Our practical advice is as follows.
Do not allow customers to become intoxicated in the first place. Observe RSA rules closely.
If they do exhibit signs of intoxication, encourage them not to drive. Do not ask for their keys. Suggest taxis, ride share (now permitted in regional areas) walking etc. Offer to call a friend or family member.
If they offer to leave their keys, tell the patron that they can leave them behind the bar. Do not physically handle the keys and tell the patron quite clearly that you will not be responsible for their safe keeping.
If the patron wants their keys back, you cannot refuse. Offer to call a friend or family member. Suggest (again) a taxi or rideshare. Call SAPOL and tell the patron you are calling SAPOL. Tell them they will be barred for 28 days if they drive. Do not ever try to physically restrain the patron. Talk to them and delay them until SAPOL arrive. In the worst possible case – that is, they insist on their keys being returned and then drive – ensure your staff make detailed notes of the interactions.
Please stay safe!
