Today I wish to conclude this series on liability of licensees and servers of alcohol by returning to the original email which I received on the subject.
An edited version of that email reads as follows: I would like your opinion on the liability of licensees and servers at bars, restaurants, hotels etc., if any, to a patron who is served with alcohol to the point of intoxication and as a result falls and injures himself.
I would also like you to consider their liability where the said patron drives away and gets into an accident injuring himself and a third party;or where the patron becomes violent and injures the server or another patron.
What can a licensee or server do legally to restrain a person from driving away from the bar or establishment? Can they be sued for false imprisonment if they restrain the intoxicated patron?
Sellers of alcohol do so under licence granted under the Liquor Licences Act. Section 68 of that Act provides as follows: “Any licensee or his servant or agent may refuse to admit to, or may turn out of, the licensed premises any person who is drunk, violent, quarrelsome or disorderly . . . .
“The said provision also mandates a police officer, on the demand of the licensee or his servant or agent, to expel or assist in expelling such person from the premises.”
Under the Act it is an offence for a licensee to permit drunkenness or any violent, quarrelsome, disorderly or riotous conduct to take place on the licensed premises, or to sell liquor to any “drunken person”.
The above provisions seem to me to be the only stipulations in the Liquor Licences Act that touch and concern the issues raised in the email.
Incidentally, there is no definition of “drunkeness” or “drunken person” in the Act.
The issue of the civil liability of licensees and servers of alcohol does not appear to have been litigated in our jurisdiction. As the law now stands it will be for the courts to determine whether a licensee or server owes a duty of care to an intoxicated patron and in what circumstances.
In Canada it has been held that a duty of care exists between alcohol-serving establishments and their patrons who are unable to look after themselves after becoming intoxicated.
For example, the establishment may be required to prevent an intoxicated patron from driving where it is apparent that he or she intends to drive.
In both Australia and England the courts have been reluctant to impose a duty of care on licensees and servers of alcohol preferring to emphasise personal responsibility.
In the United States, special laws have been enacted to deal with civil liability in those situations outlined in the email.
The brief facts outlined do not in my view give rise to liability even in Canada.
However, whether a licensee or server of alcohol can be liable for injury caused by an intoxicated patron may ultimately depend on the facts. My own view is that exceptional circumstances will be required.
The approach of the English and Australian courts seem to be more consistent with the common law which has tended to make the individual responsible for the consequences of voluntary intoxication.
On the issue of false imprisonment, to restrain a patron in the absence of legal justification will amount to the tort of false imprisonment.
If a licensee is of the view that a patron is not fit to drive it is recommended that an offer of alternative transportation should be made.
On some occasions, the behaviour of the patron may justify summoning the police.
Finally, I am of the view that there is need for legislation to give greater protection to the public and greater certainty to licensees with respect to their powers and obligations as vendors of alcohol in the circumstances described in the email.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael.
Send your emails to: cnmcc@caribsurf.com
