This paper examines the evolution of alcohol-related liability in Canada as a possible guide to the development of such liability in Australia. Many of the underlying factors that have fuelled the expansion of alcohol liability in Canada have clear parallels in Australia. The general principles of tort law are roughly comparable, as are the public concerns with reducing alcohol-related harms. While such liability will evolve in Australia along its own unique course, the Canadian experience may provide a useful model.
Until the late 1970's, it was very uncommon in Canada for individuals to be sued for injuries caused or suffered by their intoxicated patrons or guests. However, by the late 1970's, a coalition of factors created a legal and social environment that fuelled a rapid expansion in the number and kinds of alcohol liability claims. Recent changes in these underlying factors suggest that this trend will continue. As dramatic as the rise in alcohol-related liability has been, the claims brought to date represent only a tiny fraction of the potential claims.
These claims are not novel - they are not based on new legal principles that were specifically crafted to address alcohol liability issues. Rather, the cases resulted from applying existing tort principles to new fact situations that involved alcohol. Thus, the recognition of liability for the intoxicated in Canada should be seen as part of broader developments in tort law and a hardening of public attitudes towards alcohol-related harms.
At least until recently, alcohol liability claims were largely unheard of in Australia, but this is not surprising. First, unlike their Canadian counterparts, the Australian courts slowed the general expansion of negligence liability in the 1980's. Second, drinking past the point of intoxication and the presence of intoxicated patrons were traditionally viewed as accepted features of Australian licensed establishments. Moreover, consistent with the prevailing views of individual responsibility, intoxicated persons were considered the sole author of any injuries that they suffered or caused.
Nevertheless, the duty to control has expended in Australia. Given the Australian data on intoxication and the risks of accidental injury and violence, the existing tort principles should give rise to a duty to control in many alcohol-related situations. In the authors' view, the recognition of the liability of alcohol providers does not require the creation of a new duty of care, but rather the even-handed application of the same legal principles that now govern parents, teachers, police, employers, and others. Even if alcohol-related liability is considered to require the creation of new duties, the relationship between the parties in most types of situations would easily satisfy the unique Australian concept of proximity.
Furthermore, the old attitudes in Australia toward intoxication are giving way to a new awareness of, and concern with, the social and economic costs of alcohol-related accidents. This has let to world-leading initiatives at both the federal and state levels, including RBT and .05% laws. More recently, there has been mounting concern about the level of alcohol-related violence. As these trends continue, courts and legislators will search for new mechanisms to address alcohol problems. In Canada and other common law jurisdictions, civil liability has helped deter irresponsible hospitality practices and spawned an array of sever education programs. There appears to be a growing perception that such liability would have a similar effect in Australia.
The paper is divided into four chapters. In chapter one, we examine the empirical and legal foundations of alcohol liability in both Canada and Australia. The second chapter explores the situations in which individuals can be held liable for providing alcohol to their intoxicated patrons or guests. The various circumstances in which occupiers can be held liable for alcohol-related injuries are discussed in chapter three. Chapter four deals with liability for the excessive use of force and several other emerging bases of alcohol liability. In the conclusion, we briefly summarise the current scope of alcohol-related liability in Canada, and the potential for the evolution of similar principles in Australia.
Australian courts may well be poised to expand the scope of alcohol-related liability, much as their Canadian counterparts did in the early 1980's. However, any such expansion will inevitably proceed along its own path, taking into account legal and social factors unique to Australia. Nonetheless, there are enough fundamental similarities between Australian and Canadian law and society to make the Canadian experience a valuable reference point for Australian judges, lawyers and legislators who wish to address the tragic toll of alcohol-related death and injury.