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Publicans win landmark case in High Court

A landmark case with implications for licensed premises everywhere was settled recently in the High Court when Mr Justice Kevin Feeney ruled that if a customer is capable of deciding to drink to excess and he or she causes injury or damage as a result of that excess, that person is entirely at fault and the publican who served that person is not to blame.

This was the first time that an Irish court has considered whether sellers of alcohol have a duty of care to their customers if those customers drink to excess and injure themselves or others as a result.

The case arose following a fatal accident on the 31st of March 2005 in which 79 year-old John Connolly was driving his car on the main Sligo to Bundoran road at Tullaghan, Co Leitrim. He had spent much of that day drinking in the nearby Diamond Bar, run by Seamus and Concepta Kelly.

He crossed onto the wrong side of the road into the path of an oncoming car. In the resulting crash, John Connolly and the passenger in the oncoming car were killed.  Two children in the oncoming car were very seriously injured and need care for the rest of their lives.

The claim against Mary Houlihan and Concepta and Seamus Kelly (third parties) was dismissed by the High Court which stated that it was not the job of a publican to supervise or enforce the Road Traffic Acts.

The judgement stated that, “It is the duty of the driver only to comply with the Road Traffic Acts and there is no obligation on any other party to ensure that he does”.

It continued that it is unacceptable to place such a burden on a publican and that to do so would unacceptably shift an individual’s responsibility for choosing their own actions.

“If a publican was obliged to  prevent a drunken customer from driving, it would require the publican to commit a tort or a criminal offence (eg false imprisonment, assault and battery). This is a duty that a court cannot order – it is something only that can be imposed by the Oireachtas.”

In exceptional circumstances, conceded Judge Kevin Feeney, a publican could owe a duty of care to a customer if that customer was so intoxicated as to be unable to look after his/her own safety and was plainly incapable of taking care of himself/herself.

John Connolly was a regular in the Diamond Bar and the publicans knew that he drove to and from their pub. He had been served five to six pints of Guinness by them that day and the crash happened very shortly after he left their bar. ?John Connolly’s insurers sued the publicans in the High Court to recover the damages they paid to settle the claim. Their case was that Concepta and Seamus Kelly served him too much alcohol that day and continued to serve him knowing that he was going to drive when he left their bar. They also claimed that the publicans should have known that he was unfit to drive and was a danger to himself and to other road users.

The court was asked to find that publicans have a ‘duty of care’ to their customers in these circumstances. In particular, it was maintained that the publicans should not have served him so much alcohol that day since they knew he would be driving.  It was also claimed that they should have prevented Connolly from driving that afternoon.

“We have been waiting for this issue to be litigated in Ireland for over 25 years,” commented Emma Keegan, Partner in Beauchamps Solicitors, on the judgment, “If the publicans had lost this case it would have put thousands of publicans out of business. It would have imposed a huge obligation on all publicans to police and to safeguard their customers.”  
She added, “Now, publicans know that they can serve as much as they like to their customers as long as they comply with the licensing laws”.

This judgment follows precedents in the UK and Australia rather than the US or Canada.

This judgment follows precedents in the UK and Australia rather than the US or Canada.

In the US and in Canada the courts have taken a completely different view and often oblige publicans to take care of their customers. If they do not, they can be held liable if a customer gets injured as a result of drinking to excess.

In one such case in Canada, a man recovered damages from a hotel for injuries he suffered after staggering into the path of an oncoming car.  He had been drinking all evening in the hotel bar and wandered onto the highway. The court said that the publican should have prevented his intoxication. This more conservative approach is because of their history of prohibition in the 1920s and 1930s. 

When the bans on the sale of alcohol were lifted in these countries, the sale and consumption of alcohol was heavily regulated and this led to a completely different social context to their laws.

 

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