In the Matter No H7/2009, C.A.L. No 14 Pty Ltd T/AS Tandara Motor Inn & Anor is the appellants and Motor Accidents Insurance Board is the respondent. In another Matter No H8/2009, C.A.L. NO 14 Pty Ltd T/AS Tandara Motor Inn & Anor is the appellants and Sandra Scott is respondent. Therefore in regarding the matter there are two different cases has been appealed.
This case been focused on the negligence and duty of case in the tort law. Another part has been focused on the negligence and breach of duty of care according to the tort law. According to the court decisions the causation has been describe along with the negligence in the tort law.
However according to the case study, the issue is now arising whether hotel from where the alcohol has been taken or the Motor Accidents Insurance Board us liable for the accident of Mr. Scott.
According to the case study, this case has significances in various aspects of tort law where negligence, duty of care, breach of duty care and causation has been defined. Mr. Scott wife has been proceed the case against the CAL No 14 Pty Ltd who is the proprietor of the Hotel , named “the Proprietor” where she sue the licensee of the hotel Michael Andrew Kirkpatrick. The another case proceeding has been occur by the Motor Accidents Insurance Board of Tasmania for the recovery of the sum which was paid as an insurance on behalf of Mrs. Scott. She has made the claims that the proprietor and Licensee of the Hotel for breach their duty of care towards his husband Mr. Scott for the death.
In this case it was found that for the death of Mr. Scott several issues has been arises. The intoxication, contributory negligence and breach of duty have been found in the citation of the case. The duty of care is one of the important reason to alleged the licensee where then plaintiff has claimed that the licensee of the bar has breached the duty of care to Mr. Scott. Here another issue is the intoxication of Mr. Scott at the time fatal accident and cause death (Foley and Christensen 2016).
The High Court of Australia has been found that it is a case of contributory negligence where the licensee has failed on the duty of acre and Mr. Scott was ignored to call his wife to get him and due to intoxication he has been faced the accident and dead.
One of the famous case of Donogue vs. Stevenson where the service provider has found to liable to act toward the customer as per the duty of the care when he is providing services. According to the complainant, the wife of Mr. Scott has stated that a bar licensee has equal duty toward the customer that if any person was highly intoxicated at the presence of the bar licensee then the person’s relatives must be informed. Here it was found that the licensee not informed the family members of Mr. Scott. In Cole v South Tweed Heads Rugby Club Ltd it was found that High Court has been found that the duty of care is commercial hosts for the bar licensee for the consumer when they serving alcohol. However regarding the issue, the court has focused on the rejection of the duty of care by the consumer. Therefore no duty of care has been applied in this case. The Civil Liability Act 2002 (NSW) define the sections – 49 where it has been stated that the person who is intoxicated is irrelevant to owned the standard of care where as, in sec-50 of the Civil Liability Act 2002 (NSW) defines that court will never allowed any damages unless any damage has been placed due to the breach of care of the bar licensee (Foley and Christensen 2016). Johns v Cosgrove and Rosser v Vintage Nominees Pty Ltd cases it has been also stated that the intoxicated person is having alcohol in the safe place which is licensed area but it is the duty of the licensee that intoxicated person should take good care for the intoxication and they are required to take care them.
Here, one issue is important where the contributory negligence has been cause. The licensee has not informed the relatives of Mr. Scott and Mr. Scott has refused to take the duty of care while he was in the bar. In the case of Podrebersek v Australian Iron and Steel [1985] case, the High Court has been found that both the defendant and plaintiff have guilty for the negligence and therefore the contributory negligence as been caused. Whereas, Maureen Townsend v Phillip O’Donnell [2016] case, a contributory negligence has detected but later it was found that plaintiff is not liable for the negligence but the defendant is liable. Another case, Astley vs. Austrust Limited (2000), where contributory negligence has been found and damage occurred. In Parlin v Choiceone Pty Ltd [2012] case the contributory negligence has been found due to the lack of use o the working equipment and the employer also failed to provide proper safety in the workplace at the time of duty.
The causation has not been taken. At the time of the incident it has been found that the licensee has agreed that the when Mr.Scott has been found intoxicated and refused to have duty of care and demanding for the motorbike keys, then the licensee should inform his family members regarding the health conditions (Foley and Christensen 2016). Therefore, in this case the board and Mrs. Scott need to prove the damages which have been caused for not calling her about the condition of Mr. Scott. The failure to ring her is also found breach of duty of the licensee. In one case, Cole v South Tweed Heads Rugby League Football Club Ltd is was also found that due to the failure to deflect, delay negligence and damage has been caused. According to the case facts the breaches has occurred for the delay, deflect manifest or stall apart from Mr. Scott. Therefore according to the Tort Law the plaintiff Mrs. Scott (wife of Mr.Scott) has been alleged to the bar licensee.
The fact of the case is Mr. Scott is working as a backhoe under Glamorgan-Spring Bay Council. On the 24 January 2002 he had a plan to meet with his friend in a bar where they consumed alcohol. He had drunk almost seven or eight cans of Jack Daniels and cola along with his friend. Later his friend leaves the hotel and informed him about the police breathalyzer and suggests him to keep the motorcycle in plant room. However, the licensee has misunderstood Mr. Scott and keeps the keys in petty cash tin where other customers keel it for safety. Mr. and Mrs. Kube offered lift to him but he refused to go. They even not were finding any sighs of intoxication. The licensee has asked him to ring his wife but he refused to do that (Foley and Christensen 2016).
Next Mrs. Patricia Thirlway has arrived in the hotel with her daughter and has some conversation and left the bar. Again he has come back to the hotel and the licensee again asked to ring his family member. Then he angrily replied to them that he will contact himself if there is any need. However after some conversation he asked for the motorcycle keys from the licensee and he provided that (Foley and Christensen 2016). Then he adjusted his helmet and rode the bike. At 8 pm when his wife get back to home and found that his husband did not returned, he drove past to the hotel but not able to found him or the motorcycle. At 8.30 p.m. Mr. Scott has met with the fatal accident and died.
Now due to the death of Mr. Scott, Mrs. Scott held liable to the proprietor and the licensee for breach the duty of care and which cause damages to them. This case is one of the common laws negligence proceeding in the Supreme Court of Tasmania where the judges has found that the Proprietor and the Licensee is not own the duty of care toward Mr. Scott. However, the Supreme Court of Tasmania has accept and allowed the appeal of the Board and Mrs. Scott. The judges Gummow, Heydon and Crennan JJ has found also that both of the proprietor and licensee not owned the duty of care to the consumer who was consuming alcohol. The duty of care only identified when a breach of the duty has been caused and causation has took place. Duty of care is one of the important issues in this case. When a moral obligation has established for ensure the safety for the consumer or any other person, then duty of care only recognized (Foley and Christensen 2016). It is a legal duty to take care of others and if any breach has occurred and damage happen then the defendant need to pay the remedies for the activities. In the Donogue vs. Stevenson case (Barry 2017), it has been found the café owner serves the beer bottle and after consuming half beer from the bottle, the consumer has found a decomposed snail in the bottle and made her sick. Therefore she sued the manufacturer for breach of duty. Therefore in this case the issue has arrived that it is the duty of the service provider to look after the product when he serving it to the consumer. Therefore, he had breached the duty and she claimed the compensation against the damages.
However, Mr. Scott wife has been started to proceed a case against the CAL No 14 Pty Ltd, the proprietor of the Hotel (“the Proprietor”) which is Matter No H8/2009, C.A.L. NO 14 PTY LTD T/AS TANDARA MOTOR INN & ANOR in the Supreme Court of Tasmania. Another proceeding is also introduced by her against Michael Andrew Kirkpatrick who is the holder of the hotel license (licensee) for the breach of the duty (Foley and Christensen 2016). Here, another case has been started by the Motor Accidents Insurance Board of Tasmania (“the Board”) which is Matter No H7/2009, C.A.L. NO 14 Pty Ltd T/AS Tandara Motor Inn & Anor for recovering insurance amount on behalf of Mrs. Scott (Barry 2017).
Both of the Board and Mrs. Scott have alleged that the licensee has breach the duty for not informing Mrs. Scott who was the wife of Mr. Scott which causes the damage. Therefore the judges have found that the causation regarding the case is actually difficult to prove. In the case trial the licensee has accepted the facts that they are used to inform the family members who are highly toxicities. Therefore if the licensee had call to Mrs. Scott for collect her husband takes him then the damage may not occur. This is one of the critical issues which may able to prove that the licensee had breach the duty (Foley and Christensen 2016).
Here, the Supreme Court of Tasmania has focused on the issues where it has been found that if Mr. Scott if had any telephone or mobile number then there is no proof that the licensee has the knowledge about the number. Here another thing is Mr. Scott never contain his residential or mobile number with him or there is no one with him when he leaving the public bar. There for only the licensee Mein able to enquiry about his situation whether he will able to go to home or not. Licensee of the hotel has ask about the phone number of MRS Scott are several times but Mr. Scott refuse to provide the phone number (Barry 2017).
Therefore it can be stated that due to refusal to call to his wife the licensee was confused about to call her and there is no credibility for the licensee to forcefully call someone. There are even know possibilities of to call Mrs. Scotts if that call never reach to her then that will not provide any knowledge about the condition of his husband. If the licensee may call to Mrs. Court then there is no Assurance that she will response to the call and come to the bar and collect Mr. Scott. Mr. Scott again and again refusing to call his wife therefore it is an empathetically expression command to not ring a his wife. Tears for no reason husband proved and even the licensee complied with the aligned duty the accident can be prevented (Foley and Christensen 2016).
The breach of Duty only occurs when a person has the duty of care towards another person and failed to provide the appropriate duty according to the standard then the person will be liable for negligence or cause damages. When any defendant makes any breaches of Duty towards the plaintiff then there must be a reasonable care, professional liability and premises liability must occur. If the defendant causes any damage due to the negligence of the duty of care then it will reach the terms of providing services and cause bridge towards the plaintiff.
In the case of Donogue vs. Stevenson case the service provider has failed to provide the services which cause the reach of duty towards the consumer. According to the case study the plaintiff Mrs. Scott has stated that the proprietor and the licensee has breach the duties towards their customer while they are serving alcohol.
The court has found 5 alleged breaches of duty in this case. First due to the failure to ring Mrs. Scott can be considered as breach of duty because the licensee had no man’s to call misses court and inform about the intoxication of his husband. Second Bridge has been caused due to failure to stall or manifest reflects delay due to some resistance (Barry 2017). When the bridge of duty related with the deflecting stalling Adelaide then Mr. Scott may have the right to position of the motorcycle. According to the history Mr. Scott one to sell and grab the keys and drives his own motorcycle (Foley and Christensen 2016). In the case of Cole v South Tweed Heads Rugby League Football Club Ltd that the bud light sensor has the duty to serve alcohol but the consumer has refused to take any help from the bar licensee. Therefore in this case there is no evidence where Mr. Scott is unable to drive the motorcycle but the proprietor and licensee has already submitted and accepted that they had a duty to provide about the keys to Mr. Scott which may cause of physical harm to him.
The third breach has been caused due to the negligence by the licensee because he must refuse to hand over the motorcycle to Mr. Scott while he is highly intoxicated but here it can be committed and illegal act by the licensee (Barry 2017). The breach of duty is indicated when the licensee had failed to drive Mrs. Scott to his home. Mr. Scott was intoxicated therefore he must not drive the motorcycle. The licensee should drive him but hair another question can be arise that Mr. Scott has refused every Transport from his friend rather than he would like to drive its own. But the licensee must drive Mr. Scott because it is the duty of the bar that while the consumers are drunk fail the licensee must take every step to reach him to the home safely (Foley and Christensen 2016).
Therefore according to the case study it has been found by the full Court that the bar licensee and the proprietor should have some duty of care to Mr. Scott. However the duty of care of the proprietor and licensee has not any specific reason and the judges rejected the duty of care explanation. After a several approaches to call his wife Mrs. Scott by the licensee and proprietor he continue refused to inform her therefore it can be stated that he in may have the consciousness of the capacity to drive to his home. However various issues has been discovered to reject the allegations of duty of care those are the commercial conduct where there is no evidence has been found that the licensee has offered drinks to Mr. scotch rather he take his own drinks. There is a reasonable care has been taken in the service of alcohol when they are serving to Mr. Scott. There is a narrow formulation of Duty has been found where the duty of care propounded on behalf of the board and Mrs. Scott. The another thing is Mist escorts autonomy where he has desire to write his wife’s motorcycle and reached to his home (Foley and Christensen 2016).
The lack of coherence Oka when the duty has been claimed which is incompatible with other duties of licensee. It has been also found why the board and Mrs. Scott that that there is a contributory negligence has been occur but if there is no duty of care owned by the licensee or the proprietor then there is no negligence has been occur buy them however Mr. Scott is in the hotel where he consumed the alcohol. The licensee has indicated that when their consumers are in the hotel premises and using the service they are safe from any damages but in this case after a several request to contact Mrs. Scott, he has refused to take help from the licensee or any other of his friend. However on the 24th of January in 2012 Mr. Scott died due to the motorcycle accident. Therefore according to the Civil Liability act 2012 the case husband related with intoxication where contributory negligence and breach of Duty has been use several professions which are relevant to the case study.
Conclusion
In this case it has been found that the trial judge of the Supreme Court of Tasmania had found that there is no relevant duty of care should provide to Mr. Scott by the proprietor and the licensee, therefore the breach of Duty allegation not made according to the solving of the case (Barry 2017).
The full Court has accepted the appealed from the board and Mrs. Scott but according to the case processing they have found that both of proprietor and licensee has the duty of care to Mr. Scott but there was no breach of Duty which is the reason of death of Mr. Scott (Barry 2017).
Therefore in the both appealed cases has been accepted by the Supreme Court of Tasmania but in the court the cases has dismissed due to the prove that no breach has been occur in both matters of Matter No H7/2009 & Matter No H8/2009. The respondent has been ordered to pay the cost to the appellants for processing the case in the full Court of the Supreme Court of Tasmania according to the mentioned amount in the order. The proprietor and the licensee has not breached any duty of care while they are in the duty of serving and continuing to serve alcohol to the Mr. Scott. It is their duty that in the hotel the licensee was present for serving the alcohol however Mr. Scott has not able to reach the home and died due to the fatal road accident.
Reference
Astley v Austrust Limited High Court of Australia (2000) 197 CLR 1; [1999] HCA 6 (4 March 1999)
Baron, P. and Corbin, L., 2014. Ethics and Legal Professionalism in Australia. Oxford University Press.
Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent (Sydney, NSW), (140), p.12.
C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (H7/2009)
C.A.L. No 14 Pty Ltd vs. Scott [2009] HCA 47 ( H8/2009)
Cole v South Tweed Heads Rugby Club Ltd
Cole v South Tweed Heads Rugby League Football Club Ltd
Donoghue v Stevenson [1932] AC 562
Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).
Fordham, M., 2013. Legislation and Case Notes: Contributory Negligence and the Disabled Claimant.
Goudkamp, J. and Nolan, D., 2017. Contributory negligence in the Court of Appeal: an empirical study. Legal Studies.
Goudkamp, J., 2015. Apportionment of damages for contributory negligence: a fixed or discretionary approach?. Legal Studies, 35(4), pp.621-647.
Johns v Cosgrove
Parlin v Choiceone Pty Ltd [2012]
Podrebersek v Australian Iron and Steel [1985] HCA 34
Maureen Townsend v Phillip O’Donnell [2016] NSWCA 288 (19 October 2016)
Rosser v Vintage Nominees Pty Ltd
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