EDITORIAL WEDNESDAY 11.11.09.
The High Court has issued a ruling which returns the responsibility for drunken actions to the individual who has been doing the drinking by finding that liquor licensees have no general duty of care towards their customers under common law. This finding overturned a decision by the Tasmanian Supreme Court which had ruled against a publican who had returned a set of motorcycle keys to a patron who had later crashed and died. The man was found to have had a blood alcohol reading of .253, more than five times the legal limit. While it might be said that the publican should not have returned the keys, the decision to drink and drive was made by the individual.
There is of course a legal obligation upon venues in New South Wales to deny service to people who appear to be already intoxicated, and this decision does not change that obligation. However, the ruling recognizes the difficulty in both observing and enforcing such regulations, as well as making the distinction between the legal requirement to deny service and the idea that there might be a civil duty of care associated with the consequences of inebriation. The High Court judges referred specifically to the concept of customer autonomy, recognizing that in the normal course of affairs the law generally holds individuals to be responsible for their own conduct.
Many people might also believe that there is a community or moral obligation upon all of us to intervene in circumstances when an individual may have had so much to drink that his judgment has been impaired. We would hope that a person’s friends might try to discourage a stupid decision to drive after drinking, and we would hope that licensees would also take reasonable steps to encourage responsible behavior, even without modern day Responsible Service Of Alcohol laws. But while those moral responsibilities are immensely important, they are impossible to legislate, and it is a mistake to try.
The High Court decision identifies that mistake in its references to “interfering paternalism” and “customer autonomy”. The fact is that the more we make laws to take away personal responsibility, the more people will be likely to act irresponsibly. It promotes a victim mentality where every adverse outcome is somebody else’s fault, and if you can identify just whose fault it might be, then you can even sue them over it. Conversely, if the law makes individuals responsible and accountable for their own decisions, surely individuals will then be more likely to act responsibly, and those who don’t can expect to have to deal with the consequences.
There has been some concern that this decision might be construed as a green light for licensees to serve people who should be turned away, and that it undermines the principles of responsible service of alcohol. But the truth is that blaming licensees for the decisions of others, over which they have very little control, if any, undermines the principles of fairness, justice, and free choice. We should all watch out for our mates, but we shouldn’t be expected to take the blame for other people’s stupidity.