Hurlstone Park Licensee’s breach of his responsible service of alcohol duties result in severe brain damage

PUBLISHED 30 Aug 2017

Mr MG was a seasoned drinker. He had been a heavy drinker most of his life, and a regular at many hotels. As a consequence he was already starting to suffer from those effects at the age of 57.

On the day of the incident, he attended his local hotel at about 3:00pm. He was dropped off by a friend, and started drinking with other friends. Due to his alcohol problems, he had for many years reverted to drinking light beer. This allowed him to socialise for longer periods. On this day, however, the licensee whilst on duty recommended to MG and his friends to purchase jugs of beer as this would cost them less. When the licensee completed his shift, he continued to provide MG and his friends with free alcohol.

Witnesses provided testimony that MG was well and truly intoxicated when he was being provided with free alcohol.

CCTV footage at about 8:15pm showed MG entering into a room to light up a cigarette. MG was so intoxicated that when he went to sit on a stool he missed it completely, striking his head on a water feature. Despite persons around attending upon him, no first aid attention was given. He started feeling unwell and his friend proceeded to drive him home which was only 10 minutes away.

As the car pulled into the driveway, MG fell out of the car and started to convulse. Fortunately there was an ambulance passing by. He was immediately taken to Canterbury Hospital. It was identified that MG had shattered his skull and was bleeding into his brain. MG ultimately suffered a serious brain injury that took away his independence, now requiring full time care.

Although common sense may dictate this to be a straight forward case, at law this is an extremely complex case.

MG had instructed another personal injury specialist law firm. That firm had this matter for almost three years. It was only near the expiry of the limitation period that he was ultimately advised that in their opinion and in accordance with their counsel’s advice that he would have no prospects of success.

Upon being instructed by MG we immediately filed a statement of claim based upon his recollection of events.

The difficulty with this case was pursuant to the Civil Liability Act, if a person suffers injury as a consequence of intoxication, then that person is not entitled to damages, unless the injury would have happened whether the person was intoxicated or not. There is no doubt that MG was very intoxicated. In fact, we say that he was so intoxicated that he no longer had the capacity to sit on a stool. However, what we do say is the licensee ought to have known that MG was intoxicated and stopped serving him alcohol in accordance with his duties under the responsible service of alcohol provisions of the Liquor Act. Not only did he not perform his duties, but he continued to provide MG with “FREE” alcohol.

As can be seen, there is a conflict of law.

Despite receiving advice from three barristers and two senior barristers, the facts of the matter continued to go against the grain of common sense, but Gerard Malouf and Partners were prepared to take this matter to the High Court of Australia to correct this conflict in the laws.

Fortunately, common sense prevailed at the negotiation table and this matter resolved for $250,000. This was a fantastic result as the main legal interpretation of the law would have amounted to no compensation for MG.

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