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December 2009 - Common-sense attitude prevails

The High Court has handed down its decisions in the Scott and Adeels Palace cases that I outlined, among others, in my paper to the AILA conference in Melbourne (See AILA News Conference 2009 issue).

The High Court has clarified the liability of publicans and I welcome the decisions. I’m sure the insurance industry will do likewise.

It is refreshing to see a common-sense attitude prevailing.

In the Scott case, The High Court held that neither a hotel proprietor nor the licensee had a legal duty to refuse a customer access to his motorcycle and its keys to prevent him suffering an injury caused by his consumption of alcohol.

Alcohol reading

Shane Scott had asked the publican at a Tasmanian hotel in 2002 to put his motorcycle in a storeroom because he wanted to avoid being breathalysed on the way home. Later, after arguing with a friend, he asked for the motorbike back, drove towards his home, had a crash and died. His blood alcohol reading was 0.253.

The High Court said the informal arrangement for storing Scott’s motorcycle was for his own convenience, but did not empower the licensee to deny Scott’s right to recover the keys and the motorcycle, should he request them.

The court also held that the duty argued for by Scott’s widow would have conflicted with Scott’s right and capacity to act in accordance with his own wishes, and would have been incompatible with other legal duties that bound the licensee.

The High Court ordered judgement in favour of the proprietor and the licensee.

Prevent injury

In Adeels Palace, the court ruled the Adeels Palace Restaurant should not be held liable for injuries arising from violent conduct, in circumstances where the evidence did not establish there was action it could have taken which would, on the balance of probabilities, have prevented that conduct from occurring.

While the restaurant owed a duty to all its patrons to take reasonable care to prevent injury arising from the violent, quarrelsome or disorderly conduct of other people, the High Court held it was unnecessary to determine whether there had been a breach of the duty. The evidence did not establish that greater security, if it had been provided, would have deterred or prevented a gunman who re-entered the premises and shot two men.

The NSW Civil Liability Act required the two injured men to establish that the restaurant’s negligence in failing to provide any or sufficient security was a necessary cause of the damage they each suffered.

However, the court said the evidence only went as far as to establish that, if there had been more security, it might have prevented the injuries caused by the gunman. It did not show that more security would, on the balance of probabilities, have prevented the injuries.

Geoff Masel lectures

The last of the Geoff Masel memorial lectures has been delivered by Robert Merkin, Professor of Law, University of Southampton, and a consultant to the UK firm Barlow, Lyde & Gilbert LLP. On behalf of AILA, I thank Prof Merkin for travelling to Australia to present the series.

There were excellent attendances at all locations and the subject was very topical, given that the global financial crisis has resulted in many claims against directors and companies (see AILA News, December 2009).

The excellent paper will be an invaluable resource for those working in the D&O area and maintains the high standard we have always enjoyed with the memorial lecture series.

AILA is delighted that former High Court judge Justice Michael Kirby has agreed to present the 2010 Geoff Masel memorial lecture tour.

Website access

AILA members will by now have received instructions on how to access the members-only section of the AILA website that houses the library archive.

This excellent resource is a work in progress, with new material being added frequently, so it pays to check the site regularly for new information.

Season’s greetings

As this is the December issue, I’d like to offer season’s greetings and best wishes for the new year to all members of AILA and NZILA.

I trust you will enjoy a festive break with family and friends and return revitalised in 2010 ready for an enjoyable year ahead.

Please stay safe as you enjoy your holidays. 

David McKenna 

AILA President



PO Box 2011 FOREST HILL VIC 3131
1300 699 140 office@aila.com.au



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