Christopher Pearson speculated in the Weekend Oz that a Latham government might have secret plans to try to “stack” the High Court with reformist Labor appointees, by increasing the size of the current Bench from 7 to 9 (a step not constitutionally barred) as well as replacing Justices McHugh and Callinan with Labor mates when they retire in due course.
My initial reaction was fairly dismissive. History suggests that a Labor government, at least after it’s been in power for a while, is likely to be just as averse to judicial activism on the High Court as the Tories. The Hawke/Keating government is generally thought to have appointed Justices McHugh and Gummow, both of whom were seen as vaguely Labor-leaning judicial conservatives, to counterbalance the activists on the Mason Court. Given that Labor (historically anyway) tends to have more of a reformist legislative agenda than the Coalition, you might even expect a Labor government to be even more opposed to an excessively interventionist High Court.
A newly-elected Latham Cabinet might conceivably appoint judicial activists to fill the two positions created by expanding the size of the Court from 7 to 9, and possibly even another one to replace Justice McHugh when he retires next year. But that would still leave the ‘lefties’ one short of a clear majority. Surely Latham and his (mostly) equally pragmatic Cabinet colleagues will have woken up to themselves by the time Callinan J retires in 2007.
But then I read this morning’s High Court decision in Cole v South Tweed Heads Rugby League Football Club Limited. All the Coalition appointees (together with Justice Gummow) rejected an appeal by a drunken female pedestrian run down at night while walking straight towards oncoming traffic on a busy highway. The majority upheld a NSW Court of Appeal decision that in the circumstances of the case the Club proprietors did not owe Ms Cole a duty either to stop her drinking, or to ensure that she didn’t walk or drive home.
The disturbing thing is that Justice Kirby (hardly a surprise) and the usually very sensible Justice McHugh both dissented, and would have held the Club liable in negligence, despite the fact that it isn’t at all obvious how the Club could have:
(a) discerned that Ms Cole was inebriated when serving her a bottle of wine some 6 hours before the collision; or
(b) forced her to accept a lift home in the Club’s courtesy bus against her will.
The effect of holding a liquor licensee liable in negligence in such circumstances would be almost tantamount to making hoteliers absolutely liable for the well-being of their customers, to the point of being universal default insurers irrespective of negligence in any meaningful sense.
It serves to remind us that excessively activist High Court judges could have a very real effect on legal outcomes well before they achieve an absolute majority on the Bench. In Cole, for example, Justice Heydon didn’t sit, because he’d been part of the Court of Appeal majority below, so that the case was decided by a bench of six Justices. Thus, the appointment of 2 or 3 activists, to mitigate Justice Kirby’s habitual lonely dissent, could occasionally have quite dramatic and disruptive outcomes in particular cases, where the size of the bench actually sitting is reduced by illness, absence or disqualification from a particular matter.
Anyway, here are the background facts in Cole, extracted from the judgment of Callinan J. Decide for yourself: do you think Ms Cole should have recovered damages from the licensee?
CALLINAN J. Mrs Cole, the appellant, had worked in a buffet car on the railways, as a waitress in a restaurant on South Molle Island, in a nightclub for two periods, and at a tavern as a function manager at the Gold Coast. She was 45 years old at the time of the events with which this Court is concerned. It is inconceivable that by then, in 1994, she had not had ample opportunity to observe and come to understand the universal effects of the consumption of alcohol.
The appellant systematically and deliberately drank herself into a state of intoxication at or in the vicinity of the licensed premises of the first respondent (“the respondent”), starting at about 9.30am and continuing throughout the day of 26 June 1994. It is far from clear how much of the liquor that she drank during that day was supplied to her by the respondent.
The appellant spent some of the day at the premises talking to, and drinking with friends. For part of the time she played gambling games. Unsurprisingly, she could not account for her movements and activities at other times although she remembers, as the primary judge found, that “she had a very good time”. Equally unsurprisingly, by one-thirty in the afternoon the appellant was manifesting to some people signs of her inebriation. Her friend Mrs Hughes said that as early as midday the appellant was drunk, carrying on and arguing, and her speech was “a bit funny”. Mr Pringle, the manager of the respondent spoke to the appellant at about 5.30pm. He saw a bottle of wine on the table where she was seated and later described her as then being “very, very drunk”. He thought that she was being held up by someone else. He said to her “You are affected by alcohol, I won’t tolerate your behaviour, you will have to leave”. Because Mr Pringle thought the appellant needed help to reach her home safely, he offered her the use of the club’s courtesy bus and driver. The alternative of a taxi was offered, which again was a service provided by the respondent from time to time. The appellant’s response to both offers was, as Mr Pringle recalled, “Get f…..”. Mr Pringle told the appellant that he would not tolerate her behaviour. One of two Maori men who were then in the appellant’s company told Mr Pringle to “leave it with [them] and [that he would] look after her”. Within a matter of minutes the Maori men and the appellant left. Mr Pringle had already told the men in the group that because of their behaviour, they would not be served again. They did not however appear to him to be drunk.
The appellant must have consumed a very great quantity of alcoholic liquor. All of her consumption was entirely voluntary. Some time after she finished drinking the content of alcohol in her blood was 0.238. The evidence, contrary to the finding of the primary judge, did not establish that the respondent had supplied the appellant with any alcohol after about 12.30pm. In fact Mrs Pringle, who was assisting at the club, had refused to serve her at about 3.00pm.
The appellant’s last recollection of events before she was injured was of speaking to the driver of a taxi cab to tell him the address to which her friend should be taken, and of returning to the club to watch a football match in progress on a playing field in front of it. Her next recollection is of waking up in hospital in Brisbane.
A further sighting of the appellant, a very brief one, was made by Mrs Lawrence in the headlights of the motor vehicle that she was driving in a southerly direction along Fraser Drive in the vicinity of the respondent’s premises at about 6.20pm in darkness. The appellant was walking towards her on Mrs Lawrence’s side of the roadway but near the edge of the bitumen carriageway. The appellant was wearing dark clothing. Mrs Lawrence initially saw only her face. The vehicle struck the appellant. She suffered serious injuries.
The appellant sued Mrs Lawrence and the respondent in the Supreme Court of New South Wales. The case was heard by Hulme J. In one passage in his judgment he described the appellant’s conduct in walking on the roadway in this fashion:
“Thus, despite the almost unbelievable stupidity (at least for a sober person) of continuing to walk towards, or stand in the way of, a lighted oncoming car at night, it seems to me that the probabilities are that that is what the [appellant] did. Of course, it may be that it was a case of her just not moving off the carriage way in time and for enough time for the car to pass.”
His Honour found both Mrs Lawrence and the respondent to be negligent. His conclusion in relation to the respondent was as follows:
“There can be no doubt that the supply of alcohol in the form of what I may call the 12.30 bottle and the later one, was a contributing cause of the injury she later suffered.”
The primary judge apportioned liability for the appellant’s injuries, as to the appellant herself 40 percent, and as to Mrs Lawrence and the respondent, 30 percent each.
Both Mrs Lawrence and the respondent successfully appealed to the Court of Appeal of New South Wales (Heydon and Santow JJA and Ipp AJA) and in consequence, the appellant’s action was dismissed with costs. As will appear, I agree with the decision of the Court of Appeal which I regard as an inevitable one.
The Court of Appeal held that when the appellant purchased a bottle of wine from the respondent at 12.30pm her state of intoxication would not have been known to the respondent’s employees. Likewise, the evidence was not capable of establishing on the balance of probabilities that, after 12.30pm, the appellant bought alcohol from the respondent or that it supplied alcohol to her. The source of alcohol she acquired during the afternoon is a matter of speculation. Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess. The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law. The respondent owed the appellant only the ordinary general duty of care owed by an occupier to a lawful entrant. Heydon JA, with Santow JA agreeing held that to extend the duty to the protection of patrons from self-induced harm caused by intoxication would subvert many other principles of law and statute which strike a balance between rights and obligations, and duties and freedoms. …
Let me assume, contrary to what I would hold to be the case, that the respondent owed a duty of care of the kind suggested, to the appellant before and at about the time that she left its premises. There was no breach of such a duty. The notion that the appellant, as far gone and as offensively abusive as she was, would have been amenable to counselling, or simple restraint, or indeed to any measures intended to restore her composure, is fanciful. Forceful restraint was out of the question. No sensible person would ever remotely contemplate such a course, capable, as it would be, of leading to a physical altercation, an assault, and the possibility of criminal and civil proceedings in relation to it. The same consequences could equally flow from any attempt to induce the appellant to regain her sobriety in a room or other quiet place at the respondent’s premises. As for the suggestion made in oral argument, that a police officer could and should have been called, these responses should be made. It is highly improbable that a heavily pressed police force would have had, or would have been likely if it did have them, to provide, sufficient personnel to enable a police officer or officers to make a timely and effective visit to the premises. And in the unlikely event that a police officer did make a timely call at the premises, it is equally unlikely that his or her official duty could have been discharged otherwise than by doing what the respondent itself did, that is, “turn [the appellant] out … of the premises of the club”. There is another complete answer to this ground of appeal. It is that the appellant when she left did so voluntarily and apparently with a group of men. The men said that they would look after her. In those circumstances there was nothing that the respondent could do. There is no obligation upon anyone to engage in a futility.
Even assuming a relevant duty of care the respondent would have fully discharged it by doing what it did, offering the appellant the use of a courtesy bus, or a taxi.