UTS: FACULTY OF LAW
Assignment 1: Case Note
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (CAN 009 504 0081) and Another (No
2) (2009) 256 ALR 512
Johanan Ottensooser
Tutor: Tracey Boothe
Word Counts: 1474
Part A: Case Summary
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) and Another (No 2) (2009) 256
ALR 512; [2009] TASSC 2 (“The Case”)
Motor Accidents Insurance Board1 v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081)
(No 2) (2009) 256 ALR 512; [2009] TASSC 2
The parties to The Case were: appellants, Scott and the MAIB; respondents, the Tandara Motor Inn
(“the Hotel)2 and Kirkpatrick3.
Scott, widow to the deceased, brought actions against the Hotel and Kirkpatrick (the licensee) in the
Tasmanian Supreme Court4 under the Fatal Accidents Act5. The MAIB filed suit in parallel in order to
recover compensation paid to her. The cases were consolidated. The Supreme Court found of
Tasmania for the defendants6. The decision was overturned on appeal7. High Court “Special Leave”
was granted8.
On 24/01/2002, Scott went to the Hotel. Upon arrival, he continued to drink (having drunk at his
workplace). Kube suggested that they store Scott’s motorbike in the, store-room, which they did,
Kirkpatrick keeping Scott’s keys. At 8:00pm, Kirkpatrick told Scott that he had enough (after 9
drinks), and offered to ring Scott’s wife, which Scott refused. Scott asked for his motorbike, which
Kirkpatrick gave him. On the ride home, Scott rode into a bridge, dying. There was evidence of
marijuana and alcohol in his blood9.
The debate surrounds the duty of the hotelier to patrons where a special relationship is apparent.
Furthermore, the possible actions of a reasonable person in the circumstances were questioned10.
The Tasmanian Supreme Court found that the trial Judge had erred. This was based on their
finding that the Hotel and Kirkpatrick had a duty of care to Scott, due to his position of control11, an
1
The Motor Accidents Insurance Board
CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) (“The Hotel”)
3
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
512.
4
Scott v CAL No. 14 Pty Ltd [2007] TASSC 94.
5
Fatal Accidents Act 1934 (TAS).
6
“I determine that the death of the deceased was not the result of actionable negligence”: Scott v CAL No. 14
Pty Ltd [2007] TASSC 94, 9.
7
“That the appeals be allowed. That the judgments in favour of the respondents be set aside”. Scott v CAL No
14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, 532.
8
CAL No 14 Pty Ltd T/as Tandara Motor Inn & Anor v MAIB [2009] HCATrans 113.
9
Synthesized from Scott v CAL No. 14 Pty Ltd [2007] TASSC 94, 1 and Scott v CAL No 14 Pty Ltd t/as Tandara
Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, 512-13, 514-16.
10
Ibid. 512, 513 (see numbered list (i) through (viii)).
11
“Kirkpatrick took on a role … that went way beyond the normal relationship between a hotelier selling
alcohol and a patron” Ibid. 526, this differentiating the case from Cole v South Tweed Heads Rugby League
Football Club Ltd and Another (2004) 207 ALR 52 where no special relationship existed.
2
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Assignment 1: Case Note
exceptional relationship as allowed for in Cole. The argument regarding “Bailment” 12 was found to
be a post-hoc justification.
The Court accepted the appeal, nullified the previous judgment in favour of the respondents and
provided for further court orders13.
Part B: Analysis of Legal Reasoning
In Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081) and Another (No 2) (2009)
256 ALR 512 (“The Case”), there was a two to one majority favouring the appellants; Crawford CJ
dissenting against the judgement of Evans and Tennent JJ. Thus, two conclusions require
consideration. Analysis of these allows the extraction and evaluation of different legal policies.
The majority found that the trial judge had erred14, as delineated by the eight points of appeal. The
first three dealt with the scope of the duty of hotelier to patron as outlined in South Tweed Heads
Rugby League Football Club Ltd v Cole and Another15. The final points deal with the legality and
reasonableness of the actions expected of the hotelier.
Evans defines his decision as an exception based on the complexities of the Case’s facts. He
starts by establishing a duty from entrant to occupier and extends this16. To extend this to the duty
of the licensee over the actions of the intoxicated patrons, Evans cited the judgments of McHugh J
and Kirby J in Cole v South Tweed Heads Rugby League Football Club Ltd and Another17 (“Cole”).
McHugh J extended the duty “to injury that is causally connected to ingesting [alcoholic]
beverages”18. However, this was Obiter, and, thus, not binding. In Cole, Gleeson CJ states that his
decision was founded “in the circumstances of this [specific] case”19. The facts of Cole provided
challenges to a duty of care that were not present in The Case: scale preventing the intimacy where
a duty of care was implicit. However, here, the issue “[has] little bearing”20: there were few patrons,
and the deceased was known21. Evans states that duties of care are determined by relationships22.
12
The rights to property in the trust of another, Peter BA LLM(Hons)(Syd) et.al. (eds) Butt, 'Butterworths
Concise Australian Legal Dictionary' (2004), at [73].
13
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
532.
14
In Scott v CAL No. 14 Pty Ltd [2007] TASSC 94.
15
South Tweed Heads Rugby League Football Club Ltd v Cole and Another [2002] 55 NSWLR 113.
16
Evans accepts the duty between entrant and occupier as a common law principle, and extends it through the
licensed establishment’s requirement of protection against violence via the cases listed, Scott v CAL No 14 Pty
Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512, at [46].
17
Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52.
18
Ibid. at [31].
19
Ibid. at [9].
20
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
at [47].
21
Ibid.
22
“duties of care … may be more or less expansive depending on the relationship in question” in the decision
of Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, at [43].
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Kirkpatrick involved himself in organising Scott’s way home23 and was in possession of his keys;
therefore, the relationship was apparent24. By distinguishing The Case from Cole, and by highlighting
the relationship between Scott and Kirkpatrick, as required by Roads and Traffic Authority of New
South Wales v Dederer25, Evans established the duty of care of the respondants to the deceased.
Tennent J also concluded that there was a duty of care apparent. However, he came to this
conclusion in a slightly different manner. Whereas Evans excluded this case from the precedent set
by Cole, Tennent J allowed for The Case within Cole’s allowance for exceptions26by classifying the
relationship as exeptional27.
For the appeals to be upheld, the duty extracted must have been breached. This requires
reasonably forseeable damage caused by the act or ommission of the respondant. Evans and
Tennent J agreed: considering that Kirkpatrick stopped serving the deceased alcohol28, a reasonable
person in his position would would not have returned his keys. The trial judge, as well as Crawford
CJ found that witholding the motorbike could have legally been met with force. Evans29 and Tennent
J30 reject this. Evans states that Kirkpatrick would have“obviat[ed] the risk”31 had he acted as a
reasonably, offering resistance to the return of the motorbike. In The Case, the judges in majority
established a duty of care was breached according to Wyong Shire Council v Shirt32 (“Wyong”), since
a reasonable person would have acted with greater care in the same situation.
Crawford CJ agreed with the trial judge on the matter. This was based on his finding that
there was not an apparent duty, as set out in Cole, and that Kirkpatrick acted reasonably. For a duty
to exist in a case so similar to Cole, the case must be differentiated. Crawford CJ found the
relationship between Kirkpatrick and the deceased to be normal. He rejects that Kirkpatrick
organised that the motorbike to be put away33. Kirkpatrick thus exempt from organising the
23
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
at [50].
24
“Kirkpatrick took on a role … that went way beyond the normal relationship between a hotelier selling
alcohol and a patron” Ibid.
25
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330.
26
“the defendant did not owe the deceased any duty … unless there was some reason to treat this as an
exceptional case in which some duty did exist” South Tweed Heads Rugby League Football Club Ltd v Cole
and Another [2002] 55 NSWLR 113.
27
Kirkpatrick controlled the deceased’s alcohol intake and “his egress from the hotel and the means of
transport he used” Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2)
(2009) 256 ALR 512, at [64].
28
Ibid. at [71].
29
“this issue is one of reasonableness not legality” Ibid. at [56].
30
“It is implausible to suggest that either of the men gave any thought at all to those issues. They have, with
respect, been raised in hindsight to justify what actually happened” Ibid. at [73].
31
Ibid. at [55].
32
(1980) 146 CLR 40, at 220 - 2.
33
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
at [10].
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deceased’s means of egress, and not the powerful position described by Evans. This relationship
was not exceptional; thus, the ruling in Cole34 was binding.
Crawford CJ discusses the reasonability of Kirkpatrick’s actions. He posits that Kirkpatrick
acted reasonably, attempting to stop the deceased from riding away, and that any more would be
unreasonable to expect. Kirkpatrick offered to ring the deceased’s wife to pick him up and was
rudely rejected35. When asked for the keys, Kirkpatrick asked if Scott was “right to ride”36, to which
the deceased repeatedly answered affirmatively. Crawford CJ found the sum of Kirkpatrick’s actions
reasonable, stating that it was unreasonable to expect any further action. He considered it
unreasonable to expect that Kirkpatrick call the deceased’s wife without permission37 or to prevent
the Scott from accessing his motorbike. As per the Criminal Code38, if denied access to his wife’s
bike, the deceased could have legally used force against Kirkpatrick39. It is unreasonable to ask
Kirkpatrick to put himself in danger.
Finally, when asking about the legality of Kirkpatrick keeping the keys, and the lack of
criminal liability if he had withheld them40, Crawford CJ dismissed it as having nothing to do with
obligation41. Crawford CJ established that the facts lent themselves to a non-existent duty of care.
Furthermore, even given its existence, Crawford CJ claims that it had not been breached.
The majority extends the hotelier’s duty in specific circumstances, whereas the dissenting limits it as
per Cole. Each judgement has different policy ramifications. The policies affected include the scope
of negligence and the economics of increased liability. The trial judge rejected the authority of
Canadian decisions (subsequently followed by the Queensland Supreme Court)42 which had been
used by plaintiff, because of policy: an irreconcilable difference in culture and legislation43. The
decision implied a rejection of the further expansion of the duty of care of a publican, as supported
by Crawford CJ in his dissenting judgment: “an extension of the duty of care is undesirable”44. The
majority judgement pursues the remove of artificial definitions of the limits of duties of care,
34
“That the voluntary act of drinking … be regarded as a deliberate act … for which that person should carry
personal liability” Ibid. at [25].
35
Ibid. at [13].
36
Ibid. at [16].
37
Ibid. at [21].
38
Criminal Code Act 1924 (TAS) at S45. As quoted in Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN
009 504 081) and Another (No 2) (2009) 256 ALR 512, at [31].
39
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
at [31]. Furthermore, at [35] Crawford CJ finds that there were no conditions implied in that Kirkpatrick was
the sub-bailee of the motorbike, and that he had no right to refuse the deceased access.
40
As defined in Gollan v Nugent (1988) 166 CLR 18. whereby a passenger is not required to return the keys of
an inebriated driver.
41
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
at [41].
42
With Johns v Cosgrove (1997) 27 MVR 110. following the Canadian precedents of Jordan House Ltd v Menow
(1973) 38 DLR (3d) 105 and Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222 which delineate a
bar’s extended duty of care to its patrons.
43
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256 ALR 512,
at [63].
44
Ibid. at [28].
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agreeing with Gleeson CJ in the judgement of Cole, whereby the duty is established within each
case45. Since there is a causal link between the actions of the respondents and the death, the
neighbourly principle46 requires an expansion of duty of care to allow for cases such as this. There is
implicit in these exceptions and expansion of duty of care. The flexibility protects the patrons, as is
the purpose of the law of negligence. However, this creates vagueness in the law which is contra to
the transparency required for justice47. However, there is rule, as outlined in Wyong48 allowing for a
clear, just and moral expansion of duty of care.
This decision is economically damaging. Personal injury claims rose by 6-8%49 since 2007 in
cases to do with on-road accidents. The decision proposed by Evans and Tennent J would shift part
of this burden onto licensees. If business was the only policy consulted, a ruling for the respondent
would seem ideal.
The role of negligence is protecting people from foreseeable damage with all reasonable action. In
The Case, the respondents did not act in this way. Since justice and morality should outweigh
economic considerations in the law, the judgement of the majority seems both just and convincing.
45
Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52, at [9].
Lord Atkin’s neighbourly principle founding negligence, as based on the Christian ideal of “love thy
neighbour”. In essence, that you had a duty of care for your neighbour, with neighbour defined as someone
who is directly and predictably affected by your actions, Donoghue v Stevenson [1932] AC 562, at 580.
47
As per Hart’s provisions for just laws, as reflected on in Peter Westen, 'Two Rules of Legality in Criminal Law'
(2006) 26(3) Law and Philosophy 229-305, at 229, 230.
48
Requiring the respondent to act as a reasonable person in order to avoid negligence claims.
49
Predicted from mid-year results ICWA, 'Number of Personal Injury Claims Receives' (1009)
<http://www.icwa.wa.gov.au/mvpi/crash/mv_statsclmdt.pdf> at 28/08/09.
46
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Bibliography
Articles – Books – Reports
Butt, Peter BA LLM(Hons)(Syd) et.al. (eds), 'Butterworths Concise Australian Legal Dictionary' (2004).
ICWA, 'Number of Personal Injury Claims Receives' (1009)
<http://www.icwa.wa.gov.au/mvpi/crash/mv_statsclmdt.pdf> at 28/08/09.
Westen, Peter, 'Two Rules of Legality in Criminal Law' (2006) 26(3) Law and Philosophy 229-305.
Cases
CAL No 14 Pty Ltd T/as Tandara Motor Inn & Anor v MAIB [2009] HCATrans 113.
Cole v South Tweed Heads Rugby League Football Club Ltd and Another (2004) 207 ALR 52.
Donoghue v Stevenson [1932] AC 562.
Gollan v Nugent (1988) 166 CLR 18.
Johns v Cosgrove (1997) 27 MVR 110.
Jordan House Ltd v Menow (1973) 38 DLR (3d) 105.
Motor Accidents Insurance Board v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 0081)
(No 2) (2009) 256 ALR 512; [2009] TASSC 2.
Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222.
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330.
Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (ACN 009 504 081) and Another (No 2) (2009) 256
ALR 512; [2009] TASSC 2.
Scott v CAL No. 14 Pty Ltd [2007] TASSC 94.
South Tweed Heads Rugby League Football Club Ltd v Cole and Another [2002] 55 NSWLR 113.
Wyong Shire Council v Shirt (1980) 146 CLR 40.
Legislation
Criminal Code Act 1924 (TAS).
Fatal Accidents Act 1934 (TAS).
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Assignment 1: Case Note