Wednesday, 11 November 2009

And a win for individual responsibility

Luke Malpass points me to a very nice ruling out of Australia. The High Court there ruled that, if you get drunk and then crash your vehicle, it's your fault and not the bar's. Said the Court:
The Proprietor and the Licensee must succeed for each of three independent reasons. First, even if there was a duty of care, and even if it was breached, it has not been shown that the breach caused the death. Secondly, even if there was a duty of care, it was not breached. Thirdly, there was no duty of care.
In other words, they can't show it was the drinking that caused the crash, they can't show that the bar failed in its duty of care if it had one (the customer refused multiple attempts by the bartender to dissuade him from driving), and the bar didn't have a duty of care to shield him from the consequences of his drinking anyway:
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, apart from those discussed above[57], relating to customer autonomy and coherence with legal norms.
Very sensible. One of the cited difficulties:
Then there are issues connected with individual autonomy and responsibility. Virtually all adults know that progressive drinking increasingly impairs one's judgment and capacity to care for oneself[59]. Assessment of impairment is much easier for the drinker than it is for the outsider[60]. It is not against the law to drink, and to some degree it is thought in most societies – certainly our society – that on balance and subject to legislative controls public drinking, at least for those with a taste for that pastime, is beneficial. As Holmes J, writing amidst the evils of the Prohibition era, said: "Wine has been thought good for man from the time of the Apostles until recent years."[61] Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink. To encourage interference by publicans, nervous about liability, with the individual freedom of drinkers to choose how much to drink and at what pace is to take a very large step. It is a step for legislatures, not courts, and it is a step which legislatures have taken only after mature consideration. It would be paradoxical if members of the public who "may deliberately wish to become intoxicated and to lose the inhibitions and self-awareness of sobriety"[62], and for that reason are attracted to attend hotels and restaurants, were to have that desire thwarted because the tort of negligence encouraged an interfering paternalism on the part of those who run the hotels and restaurants. [emphasis mine]
Of course, the usual healthists are outraged.
Public health experts said the decision was "immensely worrying" and could undermine responsible service of alcohol.

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