CAL No 14 Pty Ltd & Anor v Motor Accidents Insurance Board & Anor [2009] HCATrans 205 (1 September 2009)

Last Updated: 1 September 2009

[2009] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H7 of 2009

B e t w e e n -

C.A.L. NO 14 PTY LTD T/AS TANDARA MOTOR INN

First Appellant

MICHAEL ANDREW KIRKPATRICK

Second Appellant

and

MOTOR ACCIDENTS INSURANCE BOARD

Respondent

Office of the Registry
Hobart No H8 of 2009

B e t w e e n -

C.A.L. NO 14 PTY LTD T/AS TANDARA MOTOR INN

First Appellant

MICHAEL ANDREW KIRKPATRICK

Second Appellant

and

SANDRA SCOTT

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 SEPTEMBER 2009, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR J. RUSKIN, QC: If the Court pleases, I appear with my learned friends, MR K.E. READ and MR S.A. O’MEARA, for both appellants in these appeals. (instructed by Richard Mole & Associates)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR C.J. BARTLETT, for the respondent in the first appeal. (instructed by Bartletts)

MR S.P. ESTCOURT, QC: May it please the Court, I appear with my learned friend, MS A. DARCEY for the respondent, Sandra Scott. (instructed by Wallace Wilkinson & Webster)

FRENCH CJ: Yes, Mr Ruskin.

MR RUSKIN: If your Honours please, the appeal seems to raise four issues: (1), whether in the circumstances the appellants owed a duty of care to Mr Scott; (2) and linked with that, and if so, what was the content of the purported duty; (3), if there were a duty was it discharged by the conduct of Mr Kirkpatrick in offering to telephone Mr Scott’s wife; and (4), if there was a breach, was there a causal link between the breach and the damage, that is, would the call to the wife have obviated the risk.

Looking first at the question of duty, we ask the question, in what facts is the duty said to be anchored? It seems to be that the purported duty is anchored in a few facts which are not in contest, and if we just rehearse them very briefly. One, Mr Scott was a patron at the hotel. He drank from about 5.15 pm on that day. Next, there was an arrangement, which seems to be at the heart of the purported duty, and its background was this. Between about 6.00 and 6.30 pm there was a rumour that there was a breathalyser and Mr Kube, who was Mr Scott’s friend, suggested to him that he store his motorcycle. Mr Kube asked Mr Kirkpatrick, who is the second appellant, whether he would store the motorcycle and said that Mr Scott’s wife would pick him up later that night. It was Mrs Scott’s bike but we say Mr Scott had the right to immediate possession of it and Mr Kirkpatrick did not.

The understanding was that, in the evidence of Mr Kirkpatrick, either Mr Scott or someone from his group would ring his wife to collect him. The arrangement to store the bike was, we say, to avoid the breathalyser, not an arrangement to protect Mr Scott from self-harm and, finally, Mr Kube handed the keys to the bike to Mr Kirkpatrick who put them in a little tin. Now, there are six features of the arrangement which we say are important.

First, it was an informal arrangement for the convenience of Mr Scott arranged by his friend Mr Kube. Two, the arrangement gave Mr Kirkpatrick no authority over the bike. Three, the arrangement was to avoid the breathalyser. Four, it was not an arrangement to protect Mr Scott from self-harm or from intoxication. Five, it was not an arrangement by which Mr Kirkpatrick agreed to ring Mr Scott’s wife and, six, it was an arrangement which Mr Scott had the right to change, which he did, when he asked for the bike back in no uncertain terms.

We say that none of this is an adequate basis to support the imposition of a legal duty of care to protect Mr Scott from self-harm which, in truth, is the content of the duty. Moving to the question of content of the duty, the majority of the Full Court in Tasmania found that there was a duty to avoid Mr Scott riding his motorcycle while intoxicated.

GUMMOW J: Where do we see that?

MR RUSKIN: That comes from paragraphs 53 of the judgment of Justice Evans and 70. If we go to 53 first.

CRENNAN J: “Avoid” must mean “prevent” in that context?

MR RUSKIN: Yes.

I hold that the duty of care imposed on Mr Kirkpatrick and, through him, the hotel, was to take reasonable care to avoid Mr Scott riding the motor cycle from the hotel whilst intoxicated –

and that means –

so affected by alcohol as to have a reduced capacity –

Justice Tennent at 76 - - -

FRENCH CJ: There are two ways of dealing with that, of course. One is to stop the person getting intoxicated or not allow the person to become intoxicated and the other is to do something else after he had become intoxicated. We are dealing with the second aspect.

MR RUSKIN: Yes, indeed, we are. Justice Tennent at 76 says:

Mr Kirkpatrick did indeed owe a duty of care to Mr Scott, once had had taken possession of his motor bike, not to return it to him such that he could drive, and that he breached that duty by doing so.

What we say is that the duty in truth was different. The duty so framed by the Court of Appeal obscured what the asserted duty really was. It was, in truth, a duty to protect Mr Scott from self-harm arising from the effects of his intoxication.

To say that it was a duty to avoiding or preventing using the bike was really to confuse or conflate the breach, if there were a duty, with the duty, and it is like saying this in an employment case, that the employer had a duty of care to prevent the employee using the unsafe ladder. That is the breach. The duty is to provide safe plant and equipment.

HEYDON J: Just to get one thing straight, you say there is no duty?

MR RUSKIN: Indeed.

HEYDON J: You have moved on to a second phase of your argument, making an assumption against your primary case.

MR RUSKIN: No, I have really linked the two. It is really a way of saying how there could not be a duty, because - - -

HEYDON J: You are going to show there is not a duty, because any analysis of what its content might be leads you to that negative conclusion.

MR RUSKIN: That is why we say they are linked, because it is the kind of problem that your Honours Justice Gummow and Justice Hayne noted in Cole in the High Court. Could I ask the Court just to look at paragraph 56 of that judgment? Remember Cole was a different case, where the reading is about the same, it is very high, and the duty is said to be to prevent her leaving the hotel, or protect her from intoxication from leaving the hotel, and so forth. At 56 of that joint judgment, your Honours said this - - -

HAYNE J: That is at 217 CLR, particularly at 487.

MR RUSKIN: That is it, your Honour:

In Graham Barclay Oysters Pty Ltd v Ryan, McHugh J observed:

“Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk.”

His Honour also emphasised that the more specific the terms of the formulation of the duty of care, the greater the prospect of mixing the anterior question of law (the existence of the duty) with questions of fact in deciding whether a breach has occurred. On the other hand, the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined.

The present litigation was pleaded and conducted in such a fashion as to conflate asserted duty and breach of that duty and to make it inappropriate to decide on this appeal any issue respecting the existence or content of a duty of care.

GUMMOW J: That meant we did not have to consider the Canadian litigation.

MR RUSKIN: Yes, that is so, your Honour. So what we say here is to say as our friends do, it was, for example, easy to ring his wife or there was an easy accommodation, which we contest, is really to put the breach at the forefront and avoid facing what the duty really is because it is a duty to protect Mr Scott from self-harm of the kind induced by intoxication, so it has two real problems to it. To say it is a duty to prevent him riding a motorcycle is too specific and avoids the context in which it has occurred. On the other hand, to say you have to take reasonable care for a patron of a hotel is too abstract. We know that hotels have duties of care. There is a duty to, because they are an occupier, have safe premises. There may well be a duty to stop people coming in and attacking you, there are cases of this, but this is quite different, and when you see it, as we respectfully say, in the context of what the real duty is, you see the problems that are confronted by it, and the first is that, framed in the way that we contend it should be, it offends quite a number of principles, and the first is the principle of autonomy.

It offends it in two ways. First, because in Cole, both in the Court of Appeal and in the High Court, emphasised autonomy is a golden thread in the common law of negligence and you do not, except in extraordinary circumstances, have a duty to protect people from themselves. In Cole, again if we may look at 217 CLR, there are just three passages, if we could take the Court to them. The first is in the judgment of the Chief Justice Chief Justice Gleeson at page 473 at paragraph 3, two lines down:

Before turning to those assumptions, however, it is important to relate the allegations to the evidence, and the findings of fact, in the case. The allegations are stated at a certain level of generality, and can only be understood sufficiently if made more concrete. It is to be noted that they involve failure to restrain or prevent the appellant from engaging in voluntary behaviour . . . When acts of negligence are said to consist of permitting, or allowing, an adult person to act in a manner of her choosing, even if her judgment is affected by drink, then there is a need for careful attention to the supposed duty, which must be a duty to prevent her from acting in accordance with her intentions.

Then at paragraph 14 of the same judgment of the Chief Justice, which talks of coherence – and we will come to that in a moment – it says this – and I will come back to coherence, but I will jump to the middle of the paragraph:

Whatever exactly it might have been –

the duty -

it would seem to involve a fairly high degree of interference with her privacy, and her freedom of action. It is not difficult to guess what the appellant’s response would have been if the person who sold her a bottle of wine at 12.30 pm had demanded to be told whether she intended to drink it all herself. A duty to take care to protect an ordinary adult person who requests supply from risks associated with alcohol consumption is not easy to reconcile with a general rule that people are entitled to do as they please, even if it involves a risk of injury to themselves.

In the judgment of Justice Callinan – and that is at paragraph 121, at page 503, five lines down or thereabouts – the Court will see:

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.

The one final passage which, if we may, comes from the Court of Appeal and the decision of South Tweed [2002] NSWCA 205; (2002) 55 NSWLR 113. In paragraph 192 in the judgment of Justice of Appeal Justice Ipp His Honour says, talking of intoxication:

The principal effects of lesser states of intoxication will be merely to remove self-restraints and inhibitions and to induce excessive self-confidence. But persons so affected will retain some capacity (albeit that it might not be exercised) to be aware, in a general way, of the extent of their sobriety or intoxication at any particular time, and of the consequences of continuing to drink. They will also retain an ability to be able to call a halt to the drinking process. Ordinarily the more experienced the drinker, the more acute the self-perception. Actions taken by persons in this lesser state of intoxication are voluntary and remain their own; they are actions intentionally taken.

For the reasons set out in the preceding paragraph, the voluntary act of drinking until intoxicated is to be regarded as a deliberate act taken by a person exercising full personal autonomy for which that person should carry personal responsibility in law.

In this case the facts reveal that Mr Scott was indeed an experienced drinker d. He had two prior convictions for exceeding 0.05 so he was no amateur in this respect.

I said there was a double strand to the duty. It was a duty to protect him self self-harm and from self-induced intoxication. I read the passages that refer to that with a couple more. That is that the intoxication is not to be seen only at the end point when you are 0.253 and exercising poor judgment; the law recognises that you are responsible for the journey of intoxication. In this day and age everyone knows that if you start on the journey you are going to impair your judgment. The two passages that perhaps make that clear, if it is not very clear, again come from Cole in the High Court wherein the Chief Justice – no, perhaps I will take you to Justice Callinan at paragraph 131 at the very end on page 507. His Honour says this:

I am also of the opinion that in general – there may be some exceptional cases – vendors of products containing alcohol will not be liable in tort for the consequences of the voluntary excessive consumption of those products by the persons to whom the former have sold them. The risk begins when the first drink is taken and progressively increases with each further one. Everyone knows at the outset that if the consumption continues, a stage will be reached at which judgment and capacity to care for oneself will be impaired - - -

GUMMOW J: Now, Justice McHugh dissented in Cole. What do you say is the heart of his reasoning on the question of duty?

MR RUSKIN: Justice McHugh at page 481 at the heart of his reasoning was that really foreseeability seemed to be important to his Honour. At page 481, paragraph 32:

If the supply of intoxicating alcohol by a club to a customer gave rise to a reasonable possibility that the customer would suffer injury of a kind that a customer who was not under the influence of liquor would be unlikely to suffer, the club is liable for the injury suffered by the customer provided the exercise of reasonable care would have avoided the injury. That statement is subject to the qualification that the injury must be of a kind that was reasonably foreseeable. However, it is not necessary that the club should reasonably foresee the precise injury -

That is simply a statement that his Honour derived from a very general notion of the law of negligence. His Honour did not deal with the thread of the very important notion of autonomy.

GUMMOW J: He does, does he not?

CRENNAN J: Paragraph 38.

GUMMOW J: At page 483.

MR RUSKIN: Yes, he did:

Nor is any question of the autonomy of Mrs Cole or the management of the Club involved in this case. The autonomy of the management is not involved because the Club, through its management, owed a duty of care to Mrs Cole and that duty extended to taking affirmative action. Questions concerning a defendant’s autonomy are relevant in determining whether the defendant owed a duty of care to the plaintiff. But once it is held that a duty is owed – especially when the duty extends to taking affirmative action – the autonomy of the defendant is, to the extent of the duty, curtailed.

GUMMOW J: Then there is the sentence in 38:

An employer does not automatically escape - - -

MR RUSKIN: Yes:

does not automatically escape liability for failing to lay down a proper system of work -

and of course we say there are those exceptions which fit into a happy category, so of course the gaoler will be responsible to protect a prisoner from self-induced harm, as will a hospital, as will a doctor, as will - - -

GUMMOW J: I think Justice McHugh may have been putting the publican in that class. If one looks at page 482, the last few sentences in paragraph 34 -“Like employers, teachers”.

MR RUSKIN: Yes. We say that the distinction between employers and schools and hospitals is to do with important aspects called control and vulnerability. The gaoler has complete control, or should, over the prisoner. The hospital has control over a vulnerable mentally affected person, a school over a child and so forth, but our submission is that the burden of the judgments in Cole favour the view that centrally you are responsible for what you do in respect to intoxication, unless it is quite a different factual scenario, and one might be, for example, if you invite someone to drink all your alcohol and promise that you will give them safe transport home and renege on the promise, you may then set up a special relationship of which this is not an example, and it might be that kind of case that incrementally will be decided on its own facts.

FRENCH CJ: Some of this discussion, I suppose, of what Justice McHugh is saying occurs in the factual setting of obvious intoxication, but he does not really confine his notion of a duty of care in terms to that. For example, somebody could get to 0.05 without drinking a great deal, and yet it is reasonably well established, no doubt reflected in the statutory prohibitions against driving with a blood alcohol in excess of 0.05 that even though you might not appear intoxicated your reaction times are impaired, your ability to deal with a sudden emergency like a car coming through an intersection at you or whatever – I suppose the difficulty is that one cannot quite draw a line between visible intoxication and actual impairment which might result in injury.

MR RUSKIN: That is what troubled some of the Judges, particularly the Chief Justice, that you do not need to be absolutely out of your mind to be a danger to other people and what is the publican meant to do in a different context. Are you meant to go and look at every single drinker and make sure they are not 0.05? There are statutes, of course, about responsible serving of alcohol and that is not because the person is 0.05, but it is because they are showing signs of difficult behaviour and so forth.

HAYNE J: But the analysis provided by Justice McHugh in Cole may point to the difficulties of a kind related to those we looked at in the swimming cases, Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422.; are you to look forward or are you to look back? In Vairy the question was one about breach and what is reasonable was to be assessed according to what looking forward was reasonable to do. The alcohol case and the content of duty may invite the same set of questions; are you looking forward or are you looking back? What is the duty, when is it engaged, where you have a process over time where, as you so colourfully put it, the moment alcohol touches your lips you are set upon a - - -

MR RUSKIN: Journey.

HAYNE J: Slippery slope was, I thought, what you were trying to suggest to us, Mr Ruskin.

MR RUSKIN: Yes, indeed. But at the heart of it is the clash between the autonomy that you have, to do what you want to do and take the risk yourself, on the one hand, and some interference with that because the hotel has to do something, and the content of the duty must be to protect you at a certain point from harming yourself. That is what it must be. That is the real difficulty. This Court looked at autonomy in the context recently in the Kirkland-Veenstra Case, which was the suicide case, and there are passages in that case which make it clear that the Court regards autonomy as a very Rumpolian golden thread. I wanted just to take the Court to perhaps one passage in Kirkland-Veenstra [2009] HCA 15; (2009) 254 ALR 432. The passage is at [86]. It is at [85] that again the Court looks at this merging of breach with duty which is what has happened here. At page 454 of the ALR reports:

[85] The framing of the case in this way tended to obscure the distinction between the existence of a duty of care and the considerations which arise in a determination of what a reasonable man would do by way of response to the risk of injury to the plaintiff. In part, this reflects the special nature of the posited duty as a duty to prevent harm to the deceased at his own hand, not at the hand of another.

This case.

[86] The duty thus posited is novel. It has two particular features which require more detailed examination. First, although framed as a duty to take reasonable steps to prevent foreseeable harm, the particular kind of harm to be prevented is harm at the hand of the person to whom the duty is owed. Secondly, although the duty is framed in general terms (to take reasonable steps to prevent foreseeable harm) it is evident that central to the concept of “reasonable steps” is exercise of an identified statutory power.

That was statutory power under the Mental Health Act:

[87] The duty which the plaintiff alleged the police officers owed her late husband was a duty to control his actions, not in this case to prevent harm to a stranger, but to prevent him harming himself. On its face, the proposed duty would mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy, for its performance would have the officers control conduct of Mr Veenstra deliberately directed at himself.

[88] Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law.

So here it is said, well, you were worried about him getting on his bike. Is that not enough to impose the duty of care? Well, the answer, we say, is no. Referring to Justice Dixon, as he then was, in Smith v Leurs –

“[t]he general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third”. It is, therefore, ‘exceptional to find in the law a duty to control another’s actions to prevent harm to strangers”. And there is no general duty to rescue . . . The common law has been described as “individualistic”, the civil law as “more socially impregnated”.

[89] It may be said that the notion of personal autonomy is imprecise, if only because it will often imply some notion of voluntary action or freedom of choice . . . But expressed in the most general way, the value described as personal autonomy leaves it to the individual to decide whether to engage in conduct that may cause that individual harm. As Lord Hope of Craighead put it in Reeves v Cmr of Police of the Metropolis, “[o]n the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury”.

Then there is the exception about the gaoler:

[90] When a duty to control the actions of another is found it will usually be because the person to be controlled is not autonomous. Thus, the duty of care which a gaoler owes a prisoner is owed because the prisoner is deprived of personal liberty and the gaoler has assumed control of the prisoner’s person. The prisoner does not have autonomy.

At that level we say that the purported duty - - -

GUMMOW J: One has to look at paragraph [127] as well perhaps.

MR RUSKIN: Yes. This is from the judgments of Justice Crennan and Justice Kiefel:

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm. Such an approach is regarded as fundamental to the common law and has as its foundation concepts of causation. The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about . . . So far as concerns situations brought about by the action of the person at risk, it is the general view of the common law that such persons should take responsibility for their own actions . . . The common law does recognise that some special relationships may require affirmative action –

There is Crimmins which is, of course, the case where the stevedoring authority had particular control on very vulnerable workers who had never heard of a disease called asbestosis or mesothelioma and had no choice but to go where the authority said they had to go. So there you have control, you have authority, you have vulnerability and you have reliance. We say that the real duty, the duty in truth, offends the principles of autonomy and, in particular, any duty to prevent you from the harm of intoxication.

The third aspect is we say that in the context of this case the purported duty clashes with the principle of coherence in the law or coherence in legal principle. Again referring to Cole in the High Court, again if we may take you to paragraph 14 in the judgment of the Chief Justice, and that is at page 477, the coherence that concerned the Chief Justice in that case was the clash between personal autonomy, do what you like, it is your responsibility, versus the law of negligence saying you cannot do what you like. Putting it in his Honour’s words:

The significance of a need for coherence in legal principle and values, when addressing a proposal for the recognition of a new form of duty of care, was stressed by this Court in Sullivan v Moody. Although there are exceptional cases, as Lord Hope of Craighead pointed out in Reeves v Commissioner of Police of the Metropolis, it is unusual for the common law to subject a person to a duty to take reasonable care to prevent another person injuring himself deliberately. “On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury.” This principle gives effect to a value of the law that respects personal autonomy. It is not without relevance to ask what the appellant says the respondent should have done by way of monitoring and controlling her behaviour. Whatever exactly it might have been, it would seem to involve a fairly high degree of interference with her privacy, and her freedom of action. It is not difficult to guess . . . A duty to take care to protect an ordinary adult person who requests supply from risks associated with alcohol consumption is not easy to reconcile with a general rule that people are entitled to do as they please –

That is one aspect of the - - -

GUMMOW J: There is another aspect of autonomy maybe which I think might be thrown up by the last sentence in paragraph 34 of Cole in Justice McHugh’s reasons. He says that the affirmative action may extend to the giving of advice – I understand that – and warnings to forcible ejection. So that is subjecting the liberty or right of the personal autonomy by the law of assault, protection by the tort of assault, to another tort.

MR RUSKIN: Yes. Here we will come to the fact that warnings were given and an offer was given and so forth.

That is one of the aspects of interference with coherence in the law. In this case there was another which was the clash between the law of bailment and a duty that said he could keep the bike, in effect. We accept that in the Tandara Motel at 8.30 at night, people do not toss around words like “bailment” and “sub-bailment”, they use different language, but it comes to this. On the one hand, we say, Mr Scott had the right to the bike. The hotel did not have the right to the bike. I have sought to analyse the arrangement - the Chief Justice, Chief Justice Crawford in the Full Court in Tasmania described the arrangement much as I have, namely it was an understanding. It was really entered into – you could not give it the status of an agreement, so it was his bike and not the hotel’s bike.

The hotel, despite what we respectfully say Justice Tennent said about he could hold back the bike, he could not hold back the bike, it was not his bike, it was Mr Scott’s right to the bike. So you have the law of bailment which says he has the right to his bike, and you have the purported law of negligence which says he does not have the right to the bike. That is a real clash in the Sullivan v Moody sense and it is added to by the fact – and there is reference to this in the Full Court - section 45 of the Criminal Code which allows you, if they do not give you back your property, to use reasonable force to get it, though you will be relieved to know, your Honours, that you are not allowed to kill someone or cause them grievous bodily harm, but you are allowed to give them a whack, I assume. You are allowed to use physical force to do it.

It is a very difficult duty to say that you have to prevent him having his bike, but he is allowed to use force to get it back and he has the right to it and you do not, but somehow the law of negligence supervenes and says that you do. This is a very real tension in the coherence principle.

FRENCH CJ: It is really an accident of the particular circumstances of this case, is it not?

MR RUSKIN: Indeed. Although Mr Kirkpatrick never said the word “bailment”, but he did say in the transcript “I had to give it back”. Now, the inference from that is it was not his bike. He did not have any right to keep it.

CRENNAN J: Justice Tennent seems to rely on the notion in paragraph 74 that Mr Kirkpatrick had control over the bike, because he held the keys to the storeroom.

MR RUSKIN: Yes, that depends on how you use the word “control”. Of course he had control in the sense that the keys were in the little box but it was at the request of Mr Scott by Mr Kube. He did not really have the control in any legal sense that we see in the cases. The gaoler has control over the prisoner, the school over the student and the hospital over the patient, but here, as we sought to analyse, the informal arrangement was one which was at the behest of Mr Scott - - -

GUMMOW J: It was a bailment at will of the keys, I suppose.

MR RUSKIN: Indeed it was, and Mr Scott could change it and did, so “control”, we respectfully say, Justice Tennent was obscuring what the real meaning of “control” was.

HEYDON J: Mr Walker really concedes, perhaps not the totality, but a considerable measure of force to your arguments on this point. His case rests on the failure to ring up the wife of the deceased.

MR RUSKIN: Yes, and what we say about, we look at that at two levels. We say that is the breach and avoids asking the really hard question, the anterior question, what is the duty. It is no good looking at breach because if I see a child that does not belong to me and I have no knowledge of the child walking near a lake, I can easily save the child, but I do not have a legal duty to do so, so you can look at what I could conveniently do, which is grab the child, but that does not answer the anterior question, do I have a duty to do so. That is really the problem here that the emphasis on ringing the wife, which we will come to under breach, and we say it is very difficult, but it does not answer the anterior question.

HEYDON J: It points against duty, too. I mean, quite a lot of husbands do not like other people ringing up their wives, especially when they have told the caller not to.

MR RUSKIN: Yes, in pretty tough terms.

HEYDON J: It may not be a legal question, but it is a clash between social custom and the supposed law of negligence.

MR RUSKIN: Yes. With respect, we accept that. The third or fourth matter that is a problem with a duty derives from the passage we read out from the judgments of Justice Gummow and Justice Hayne about not formulating the duty in too abstract a way. When we look at the judgment of Justice Evans in the Court of Appeal, he does at one point put it in the way that was avoiding the use of the bike. He says something about deflecting and that is really what you have to do. To prevent him using the bike raises many difficulties and it really comes from - - -

CRENNAN J: He uses words like “deflect, delay departure, stall Mr Scott”.

MR RUSKIN: Yes. That is the point we are about to make, your Honour. We say that is a very abstract or puzzling or ambiguous or difficult task. To say you have a duty of care to deflect or to deceive or to delay or to stall or to schmooze, as they say in Brooklyn, is a very difficult duty.

FRENCH CJ: That was his breach analysis, though, was it not? His duty was formulated at 53.

MR RUSKIN: Yes, although it is not quite clear, with respect, because he says in paragraph 54:

The question of whether a duty of care has been breached must be addressed . . . I conclude that a reasonable person in the position of Mr Kirkpatrick would have foreseen that if he failed to do something to deflect -

We accept what your Honour the Chief Justice says, but really what is involved in avoiding him riding the motorcycle ex hypothesi is the need to deflect him. References to deflection and stalling, if that is to be analysed as breach – we will deal with it as breach – but if it is part of the real explanation of the duty to avoid, if that is its content, then it is unplayable; it is unplayable for beach, it is unplayable for duty. Try stalling people – this is not stalling for a second, this is stalling for half an hour. Just imagine trying to stall Mr Scott, who has used crude and blunt Anglo-Saxon language with such force that Mrs Thirlway left with her daughter lest something else might happen, it is just not possible.

We use the example in our outline – this, of course, is fashioned by my junior, Mr O’Meara, whose whole life is spent trying to stall and deflect his children – but we say that the toddler – look around the supermarkets, your Honours, of Australia and you will see crazed parents trying to deflect and bargain and stall their children. We have all done it and I suspect my mother still does it. But the real problem is that it is very, very hard to do for half an hour.

You know, I could do this for you, like Geoffrey Robertson’s hypothetical, without walking around, but can I just tell you what it would involve. You have Mr Scott, who is very angry or aggro. As the transcript says, he is over 0.02. He answers that question. He has been asked three times by Mrs Kube, “Can we give you a lift home?” No. He is asked by Mr Kirkpatrick, “Can I ring your wife?”, and you know what the transcript says, a very blunt refusal. What is he going to say? One of the learned judges in the Full Court says he should try again; he should try and ring him again; he should say to him, “Can I ring your wife?” again, having been given this blunt refusal.

Well, say he did, say he snuck back and he tried to find her number and then he rang her and he has to get through to her and then he comes out again and Mr Scott says “Where are the keys, mate?”. What is Mr Kirkpatrick going to do? He is probably going to say “Did you hear the joke about the Englishman, the Irishman and the Scotsman?” I mean, it has to be a very long joke, or a series of jokes. It is a very seriously unmanageable problem, we would say.

In that context, Justice Callinan is of assistance in the kind of problems that this case throws up in the Cole context. Could we ask the Court to look at one paragraph in Cole in the High Court and that is at 125. Justice Callinan puts it, we would respectfully say, directly and robustly, and I suppose his Honour is talking about breach here, but whether it is breach or duty, it does not matter. At 125, Justice Callinan says:

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 . . . 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 –

and we put here, bracket, delaying, schmoozing, deflecting:

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.

That really leads us to the fourth or fifth problem with a duty of avoiding returning the bike, and that is this. In the context of this case, the imposition of a duty to avoid returning the bike reasonably would expose the proposed tortfeasor to the risk of the kind of harm Justice Callinan said. What he has to do on this purported duty is to not return the bike which belongs to Mr Scott, who is aggro and swearing and so forth, and it is fanciful – it is unfair, the common law surely cannot ask you to put your nose on the line to fulfil a duty, which is what he would have to do, because that is what he would have to do. He would have to say “I am not giving you your bike back,” or “I am going to ring your wife,” or “I am going to trick you and ring your wife without you knowing it, and then you are going to find out,” and all that sort of thing.

So we say that is a real problem and finally, I mentioned in respect to the duty, that as framed by the Court of Appeal and in respect of the discussion of how simple would it be to ring the wife, the conflation of duty with breach. So for those reasons, we submit that in the context of this case, there is no legal duty on him to do what the Court of Appeal said he could have done, which seems to be to ring his wife.

That then brings us to this question. If there were a duty, then we contend it was discharged by the offer to ring his wife. This is quite a distinct point, of course, and in Cole, there are references and there are three short ones, if I may take the Court to that, because in Cole that is what they did. They said to Mrs Cole, “We will give you the bus to go home” and she refuses it in blunt terms, much like Mr Scott did.

In Cole at 59 from the judgment of Justice Gummow and Justice Hayne, and this is referred to a couple of times. You will remember the evidence was that he says – and I will just tell you what the transcript said because it is quite evocative of the atmosphere. In the transcript he says, “Can I ring your wife?” He gets the blunt refusal, and his response - Mr Kirkpatrick - at once is:

whoo, whoo, whoo, this is not, you know, don’t go crook at me –

I will just give you the page number of that, and it is - - -

FRENCH CJ: That passage is reproduced in the judgment, is it?

MR RUSKIN: Yes, it may well be. It is at - - -

HAYNE J: Page 151.

MR RUSKIN: Page 162:

He was pretty agitated, he said, “If I want you to ring my . . . wife . . .

What did you do in response to that?... ...I said, “Whoo hang on, whoo, whoo, whoo –

It is like you have those horses in movies, in westerns –

this is not, you now, don’t go crook at me, this is not the arrangement that was made.”

That is all part of what we were saying about a duty that would really have a risk of exposing him to harm. I was submitting that if there were a duty it was discharged by the offer, and in Cole at 59 the Court said this – this is from as I say Justice Gummow and Justice Hayne:

These reasons will seek to show that whether the Club owed either of those duties need not be decided. If the Club owed the appellant a duty to take care that she did not fall into danger of physical injury when she left the Club, it discharged that duty of care by offering her safe transport home, only to be met by her refusal and the offer, from her apparently sober companions –

Then at 76 your Honours repeated this in the context of causation. You said:

Even assuming the various difficulties . . . could be overcome, the breach of such a duty, however it is expressed, was not a cause of the injuries the appellant sustained. That is revealed by considering the case, contrary to the facts found by the Court of Appeal, that the Club carelessly sold . . . In such a case the fact would remain that, before turning the appellant out of its premises, the Club offered her safe transport home.

Analogously here the appellants offered to ring the wife –

This she refused and once she refused it, the Club could do nothing more to require her to take care. In particular, it could not lawfully detain her.

We could not lawfully detain Mr Scott, nor could we retain his bike.

If, as happened here, she left the Club and was injured, any carelessness of the Club in selling her liquor was not a cause of what happened.

At 80 of that same judgment:

Again, even if there were some duty to take reasonable care not to allow her to leave the premises except by a safe means of transport, the Club did not breach that duty. It took reasonable steps to make safe transport available to her.

That whole factual stratum should be seen in the context of – as I noted to the Court – three refusals prior by Mrs Kube, “Let me drive you home”, thrice refused, and finally he says, Mr Kirkpatrick, “Are you okay to drive, mate?” He says that twice and Mr Scott waves that away. Really, what else can he do unless he simply refuses to hand the bike back or he rings the wife against the wishes and has to go through the complex web of white lies or take the risk if he tells the truth of a bop on the nose?

The final aspect is right at the very end which is another difficulty and that is causation in the sense of let us assume he did call the wife, would it have obviated the risk on the probabilities because that is what it said he ought to have done.

In our analysis, we submit as follows. If he had rung the wife, if he was required to by law, and if he had got onto her, and the half an hour went by, it would only have obviated the risk if the evidence persuaded on the probabilities that Mr Scott had bought all the stalling excuses, so on the respondent’s case, Mr Kirkpatrick goes in, he tricks Mr Scott, he rings the wife, he gets onto her, he comes back in, and he stalls successfully for half an hour, and Mr Scott accepts all that in a calm way.

Alternatively, Mr Kirkpatrick says, “Look mate, I am going to square with you. I rang your wife. You told me not to, but I did,” and Mr Scott does a character U-turn and says “Okay, well, that is good. I am calm about that. I am quite patient about that. Do not worry about that, by golly, and I am sorry I swore earlier”, alternatively, he – and when his wife does arrive, if she does arrive, and he is still there, and he has not grabbed the keys, he says, “Nice to see you, dear. Thanks for driving me home, blossom” or is it more likely, or at least so speculative as to be unreadable, that indeed, having refused three offers from Mrs Kube, one offer to collect offers about “I am fine”, he would have, in fact, insisted on the keys, or stormed off with the bike, or done something of that kind.

At the very least, we say the causation is so speculative as not to be provable in this case. So, your Honours, those are our submissions on duty, breach and causation, unless we can help further at this stage.

FRENCH CJ: Thank you, Mr Ruskin. Yes, Mr Walker.

MR WALKER: Your Honours, Mr Kirkpatrick was, of course, a man and his corporation was a legal person, with self-interest involved in continuing to serve Mr Scott. There was merchandise, which was being supplied. True it is, the statutory law, with penal sanction, imposed a control on serving that self-interest by continuing to serve alcohol in return for money, but this is not a case, unlike the allegation that survived into the High Court in Cole, where, as eventually we find, our complaint turns on the continued service of alcohol. I make it clear by the way it started out as including that kind of complaint.

Now, the relationship between the parties that we have tried to describe at an appropriate, specific level in paragraph 20 of our written submission is a relationship that starts with the fact that the defendant is a publican making money under the regulated service, for money, of an intoxicant. It is true, of course, there is nothing we could say to detract from the force of the authoritative references, in relation to autonomy, so far as the drinker is concerned. But it applies with, at least, if not more force to a publican, that is, the awareness of the dangerous capacity of alcohol to impair judgment and motor control.

CRENNAN J: May I just take you back for a moment to paragraph 19, where there is a reference to the control on the part of the appellants, and I had difficulty understanding what was encompassed by that reference.

MR WALKER: I confess, your Honours, I have a red question mark next to that in my own copy of the submission. I think a second or third, or perhaps a third or fourth thought should have been given to the word. It is unhelpfully vague, and I apologise. Let me put to one side any suggestion that there was any legal dominion of a kind one sees in Crimmins, stemming from the statutory power to allocate workers to workplaces.

HEYDON J: Do we cross out “the control on the part of the appellants and”?

MR WALKER: Your Honour, it may end up that my argument deprives me of the whole of that. I am going to try and, however, essay a substitution, but I confess, it may well be that is where we end up.

GUMMOW J: Well, we had better know when we are ending up.

MR WALKER: Yes, I am about to express the phrase. The capacity to - - -

GUMMOW J: You do not want to leave paragraph 19 hanging in the breeze when we reserve.

MR WALKER: Instead of “the control” we would argue that it is the capacity to influence events on the part of the appellants.

Now, one can see at a glance that the danger may be that in moving away from what I will call an anterior state of control to a highly fact-specific look at the events, that there is a real risk that we will be retrospective rather than prospective. I accept that, a real risk. How do I deal with it? I deal with it by pointing to the prospect that these parties had expressly contemplated and dealt with. They did it in prospect. So we avoid the danger of being seen to reason back from the events and fallaciously choose an intervention which would have been reasonable and easy and say that could have been done, it therefore should have been done.

We accept that if that is how this case ends up, then we should lose. But in my attempt to persuade your Honours that there are strands in the reasoning in the majority in the Full Court that can and should lead to the dismissal of this appeal to your Honours, the first step, in our submission, is to concentrate on the fact that there was an arrangement made between two people with particular qualities and knowledge. I have already dealt with that which is true for the publican. I add to that that the customer, plainly, by acquiescence in and implementation of the arrangement first suggested by his friend, Mr Kube, also showed whether, for the socially concerned motive of protecting himself and others on the road or, perhaps more likely, in order not to be caught by the breathalyser, he was over a relevant limit, to do with that which public law said was to be treated as an offence because it was dangerous to ride in that condition. So that both of them knew, in prospect, that were he to ride, he would be doing so in a way which is to be regarded as impaired. That is in prospect, not retrospect.

It was not just a matter of locking up the motorcycle against what was then the prospect of it being left there overnight after the customer had, one way or another, left the hotel. There is the motorcycle locked up with the cigarettes and alcohol, secure against vandals and thieves, and we are not suggesting that the evidence yields the reading of the arrangement that it was like Ulysses binding himself to the mast. The motorcycle was locked away so that the rider could not retrieve it, although it is clear, as we have set out in our written submission, that from the publican’s point of view, that was certainly a relative aspect of the arrangement.

FRENCH CJ: When you say, in paragraph 20:

The arrangement permitted the hotel to continue serving intoxicating drinks to the customer –

is that reflected in a finding of fact, and what does it mean?

MR WALKER: It means that subject only to a matter which is not sufficiently factually explored for me to put a point about it, namely, the statutory obligation to stop service, it means that the publican, made aware of the customer and his friend’s concern about being too affected by alcohol to pass a breathalyser test, the continued drinking by the customer would not be adding to the risk for the customer and others on the road through having a prescribed content of alcohol in the blood or being drunk and thereby, without any concern of that kind of danger, he could continue to drink and to be served drink on that basis.

FRENCH CJ: Does that amount to saying that the arrangement was that the customer says to the hotelier, “It is all right for you to let me get drunk because I am not going to ride home”?

MR WALKER: That is what I cannot say because of the statutory control on the responsible service of alcohol, but it is all right to keep serving me, notwithstanding we both think I am already over the limit.

The actual statutory word in Tasmania, as your Honours have seen, is “drunk”. It may not be that there is complete social consensus, even on the Bench, as to whether one is drunk by being over the breathalyser limit. I think there might be many, many people who would protest that that was unrealistic.

FRENCH CJ: In the old days it used to be not able to trace a spiral or walk a straight line and bloodshot eyes, slurred speech and unsteady gait.

MR WALKER: Yes.

FRENCH CJ: That was before breathalysers.

MR WALKER: There would be many people, and not only those who were more full of bravado than commonsense, who would say that they and their mates never reached that state simply when they were merely just over the limit. As I say, the facts do not permit me – as the issues have both been found and explored below – to be useful at all in relation to when the responsible service of alcohol limit was imposed on the hotel. Suffice it to say that the arrangement was one reached in order that he could stay drinking, notwithstanding he had already reached a limit considered unacceptably to pose a risk of not passing a breathalyser test.

Why was that and how would that be? It would only be because, I stress, in prospect – not retrospect – it was understood that his wife would be contacted. Now, I use the passive voice because, again, the evidence does not permit me in any way to be definitive about how exactly that was to be done. With respect, my learned friend’s description of the arrangement as “informal” is an understatement. Yes, of course it was. However, it is an uncontested and, we submit, material and critical factor in the particular relationship between these parties upon which the existence of the duty, if any, is to be founded.

So I stress, in prospect, the two parties relevant knew of and accepted as justifying this unusual expedient of locking away the motorcycle that the customer was already over a legal limit and, as the references we have set out in our written submissions by way of supplementing our learned friend’s factual paraphrases makes clear, that was well understood by the publican to include impairment of riding ability.

The next thing to be added is that what was actually done by way of what can be perhaps over elaborately seen, and seen correctly, as a sub-bailment, was not merely the motorcycle was locked away but also the motorcycle keys. That was not in order to protect them from vandalism or theft. That, as we put it, must be understood as, in prospect, the party’s understanding that it would not be a good idea for him to use the motorcycle.

Now, because of the death which ensued, more cannot be known about the unquestionably impaired judgment of Mr Scott both at the time of committing the keys and, perhaps more relevantly, later on when he asked for them back. But it suffices to say that it was obvious, in prospect, that Mr Scott had already embarked on a course of drinking, to the financial profit of the defendant, which had already sufficiently impaired his position, so far as Parliament was concerned, to make him fearful of the consequences of failing a breathalyser test and, in our submission, commonsense of a kind which both in Cole and in this case leads to an understanding on publicans’ and customers’ side of the risks of taking to the roads intoxicated.

It means that, in prospect, both parties knew that things would get worse, not better, in relation to his judgment and motor control as things went on, with or without further ingestion, bearing in mind the obvious and accepted understanding of the metabolism of alcohol.

That already makes this situation absolutely out of the ordinary. This is not the ordinary case of a publican knowing about the effect of alcohol on the human organism, serving it to an autonomous adult who must also be taken to understand that effect. That is the ordinary case. That is the situation to which the comments, about which I have nothing to say by way qualification quoted from Cole, speak. This is already in prospect, I stress, in terms of what will happen when the time comes for him to stop drinking and leave, these parties, having turned their minds, such as the customer’s was at the time, to the matter, had arranged that his wife would be contacted.

In our submission, bearing in mind the self-evident and very large risk, death was not an outlandish or fanciful prospect for a motorcyclist riding drunk at all. No, we cannot say it would be seen as anything near certain or probable, but the most extreme of consequences, short of killing another or others as well, and very much on the cards. In our submission, foreseeability fulfilled amply and in prospect and understanding that the customer would be more not less vulnerable as time went on and, in particular, that his vulnerability would stem from the very intoxication which it was, to put it crudely, the interest of the publican to enhance, subject only to the question of statutory control.

GUMMOW J: This may attract a response that looking at duty formulated this way runs into paragraphs 56 and 57 of Cole which Mr Ruskin put to us.

MR WALKER: It does invite that response, yes. Can I address that directly. The epigraph, if I can call it that, that Justices Gummow and Hayne were quoting from Justice McHugh in Graham Barclay, of course, is taken from the consideration of a vastly different situation from the present; the capacity using statutory powers for, relevantly, if one considers the case against the State which required a statutory analysis rather than simply observing that of course the State could have avoided the risk. It is very important to note that the quoted passage starts with the word “Ordinarily”. It is also very important to note that there is an essential qualification concerning a person creating the risk.

As I say, I cannot sensibly offer any qualification of what has been said in this Court about the autonomy of a drinker, but it is not true that a drinker is the sole creator of a risk. There is also, of course, the contribution of the publican who supplies the drink, which is unquestionably why Parliament has said there is a limit to the say-so of a drinker to be served further drink. So, in our submission, one cannot say of a publican that he, she or it is a stranger to, as it were, a bystander or onlooker merely of the situation when somebody is giving them money in return for drink.

HEYDON J: You draw a distinction, do you, between private hosts and hostesses on the one hand, and publicans on the other?

MR WALKER: Yes, I do – a distinction which, in our submission, is critical in relation to what I will call - - -.

HEYDON J: This crude 18th century material mechanistic distinction -divides human motivation in a curious way.

MR WALKER: It may suffer from being criticised in those terms, yes, your Honour, but I do draw that distinction. It is a distinction which is readily apparent, in our submission. It is the difference, perhaps, between friends playing tip football in the backyard and a commercial gymnasium organising activity involving exactly the same game in their hall. There will be, and should be, a different approach, both to the question of duty as well as to breach in relation to, for example, artificial obstructions that may cause injury.

Now, in our submission, that would not fairly be criticised only by describing it as “crude”, “18th century” or “mechanistic”, although the distinction between remuneration or profit, on the one hand, for the commercial operation and not for the friends’ backyard would have exactly the same qualities of distinction as I have proposed in this case. In our submission, it is all the aspects of the relationship between the parties that one looks at when considering the question of the imposition of a duty, and they must include the commercial relationship.

HEYDON J: .....was any cross-examination of Mr Kirkpatrick along the lines of he was, in effect, filling up Mr Scott with alcohol.

MR WALKER: No, and that is just one of the reasons why I have not been able to put anything about the statutory duty.

CRENNAN J: In fact, the evidence was, was it not, that Mrs Kirkpatrick served Mr Scott some of his drinks, and Mr Kirkpatrick served another number. In other words, Mr Kirkpatrick was not responsible for the service of all the drinks to Mr Scott which he had consumed.

MR WALKER: No, and I do not need to go into the detail because there was a finding, ultimately, of the likely consumption, seven cans, both from the evidence of the addition of Mr and Mrs, plus the extrapolation from the blood alcohol content by the expert. Now, that led to some criticism, which is really neither here nor there, of Mr Kirkpatrick as a witness, particularly in relation to his duties to answer interrogatories.

I will not go into that at the moment, but I should also volunteer this. It is not possible at all to say that the facts show Mr Kirkpatrick, as it were, pressing drinks on Mr Scott. That would be completely wrong. There is not a shred of support for that, and it may even be though there are no findings, and the evidence is unsatisfactory, it may even be that Mr Kirkpatrick did not serve him after the so-called arrangement was made. He continued to drink, but there was evidence to suggest he may have been, as it were, nursing his last bought drink, which was before the arrangement.

So when we talk about prospect, we are talking about things that had not yet happened, and they included the possibility of continuing to drink, and/or continuing to buy drinks to be consumed, and with whatever consequence for the attractiveness of the position, yes, it is, I am afraid, clear that our case does necessarily involve a consideration of the commercial setting, the self-interest of the publican, in the sense that the reasonableness of imposing a duty of care on such a person is, we submit, self-evidently easier to achieve because the situation is less onerous, bearing in mind its coherence with the statutory obligations than it is in the case of private householders and friends at providing hospitality, including alcohol.

GUMMOW J: Do we find this in the written submissions, Mr Walker?

MR WALKER: Your Honour, paragraph 20 refers to the arrangement permitting the hotel to continue serving intoxicating drinks which it understood had the capacity to impair.

HEYDON J: There seems to be this fog over whether it actually did serve intoxicating drinks.

MR WALKER: That is why I have drawn that to attention, your Honour. That is why at this point I am pointing to the prospect that the parties had in mind – prospect. That is why, in our submission, we have avoided the error of building retrospectively backwards a case of duty from what actually happened. I stress, if that is all our case comes down to, then we should have failed and should fail. The analysis from the point of view of the law of chattels is, with respect, plainly correct so far as it goes.

It suffers, however, in relation to the question whether that provides a coherence question that ought to prevent the imposition of a duty, from its failure to answer all the ways in which, if imposed, such a duty may by its content or scope impose an obligation on the publican. That is particularly the focus of our refinement of the case in this Court to the failure to telephone Mrs Scott. In our submission, there is nothing in relation to the law of chattels. I want to deal in a moment with the matter, with respect, that Justice Heydon raised with my learned friend concerning ringing a wife against the wishes of a husband. That, of course, has nothing to do with the law of chattels, I stress.

HEYDON J: A slightly out of date submission.

MR WALKER: Yes. But in terms of the sub-bailment analysis, we respectfully accept the correctness and applicability of that, however formalistic it appears in the informal relationship in the pub. But what we submit is that that is no answer to a duty, the reasonableness of which can be adjudged by the fact that without any formality or without any agonising the parties had considered the prospect of the evening in relation to the riding of the motorbike and had reached an arrangement whereby it would not be used and even its keys would not be kept by the drinker and his wife would be requested to take him home.

In those circumstances, in our submission, to impose as a duty to do that which the parties had explicitly considered in prospect and plainly themselves regarded as reasonable is self-evidently reasonable unless something which the parties had not anticipated were to intervene in a way that has cast doubt, even on the imposition of a duty at all, before you get to the question of breach. Did that happen in this case? No, not at all. What was anticipated was that judgment and motor control would not only have already been impaired but would in all likelihood become more impaired as time wore on.

FRENCH CJ: This almost approaches the proposition that the arrangement involved Mr Scott, as it were, relying upon the publican to exercise judgment for him at the end of the night.

MR WALKER: It does come very close to that, your Honour, and that does not provide a reason to reject it, bearing in mind the setting between the parties whereby there is a statutory obligation after all to refuse service. Refusal of service is the autonomous person saying, “Another one, please?”, but the licensed person with the regulated trade in the substance known to be detrimental, the licensed person having an obligation to say, no. So there is no incoherence or, in our submission, cutting across autonomy by what we offer as a common law duty, though greatly over and above that which the statute already requires.

FRENCH CJ: The kind of reliance I was perceiving was a reliance on the publican not to let the customer do anything silly by riding off into the night while drunk.

MR WALKER: Put that way, that is, I accept, far too broad and indefinite a scope or content to be acceptable at the first stage should there be a duty of care at all.

FRENCH CJ: But, I mean, if there be a duty, it might be imposed, having regard to such an arrangement. The question is whether the arrangement had that element. But there is no finding of fact which makes that explicit and that is not really in your submissions.

MR WALKER: No, it is not. We make it as specific in relation to the understanding between these parties which provides a yardstick of reasonableness, highly peculiar to their unusual circumstances. This is not, we say, an ordinary case. Added to the matters that our learned friends have drawn to attention, may we note in particular the matters that we have added by way of further detail in paragraphs 9, 10, 11 and 12 of our written submissions. They lead to the conclusion that the trial judge found to which we have drawn attention in paragraph 13.

Those are highly specific matters to do with the immediate circumstances explicitly directed to the next few hours conduct of the customer, because he had already had too much for a breathalyser and the obvious possibility was that he would have had too much for safety. I am distinguishing, in deference to what your Honours might regard as a popular idea, however fallacious, that merely failing the breathalyser is not the same as being drunk. It is plain that under cross-examination Mr Kirkpatrick, although not showing himself the most candid and willing of witnesses, was prepared to conceded those matters. I have drawn to attention paragraphs 9 to 13 for those reasons, in our written submissions.

GUMMOW J: Mr Walker, we have annexure A, which is said to be relevant statutory provisions, they do not include any provisions of the Civil Liability Act in Tasmania. Is there such a statute? Your juniors will be alert to these matters.

MR WALKER: There are no applicable provisions governing this case. There is, but they did not apply.

GUMMOW J: We were told that in an appeal a few months ago and we have had an unhappy experience with that assurance.

MR WALKER: I have been told the same thing.

GUMMOW J: It had better be checked then.

MR WALKER: It will be treble checked then, your Honour, yes.

HAYNE J: You have been developing propositions that seem to proceed from the premise that the relevant duty to be considered was a duty to do what was agreed between publican and customer.

MR WALKER: Your Honour, I think, unavoidably, I have to say yes to that. Now, I partly get there by saying that in considering whether to impose a duty, consideration of its suggested scope or content is inseparable.

HAYNE J: I had read your written submissions – correct me if I am wrong – as seeking to support the duty as found by the Full Court. Is that right?

MR WALKER: Your Honour, there are aspects of that which are unnecessary to success, we submit, in this Court and there are aspects that I really cannot say much in support of or anything in support of at all.

HAYNE J: Because I would be assisted to know how you formulate the duty of care that you say was engaged in this case. I understand the emphasis you seek to give to doing what was agreed, but how do you seek to formulate the relevant duty?

MR WALKER: Your Honours, it comes down to this. A duty to take the reasonable care selected prospectively by the parties themselves as the means by which the customer’s interests against the risk of riding intoxicated could be safeguarded and that supplies the scope or content. All you had to do was to telephone if, as may or may not have been anticipated, there is no evidence that permits me to say anything sensible about this in the particular case. If the keys were sought the question arises, but can a duty so described, having that scope or content, require an element of the arrangement to be enforced in an action in negligence when the principal element of the arrangement was being abrogated? That is a distinct problematical aspect of our case.

The way we deal with this, as your Honours have seen from your written submission, is to say, but it would be absurd if that which diminishing judgment might render more likely, namely, foolish and dangerous decisions, were not merely, as the law of chattels would require, reverse the sensible sequestering of the motorbike and present the risk of it being ridden by a drunk, but also reverse that which, with a terrible irony, had already, we know, occurred, namely, the wife coming to the pub to pick him up.

It is because the very appreciation of the risk in question by the parties which, highly unusually in this case, have been the subject of express arrangement with much to be implied in the handing over of the motorcycle keys. So nothing to do with the vandalism or theft. We put no written submissions, in a sense, clearly, safekeeping against the person who might otherwise ride. It is for those reasons that we do have to confront the problem in this case of whether, for reasons of social delicacy, privacy, a form of autonomy, the refusal of the request for the publican to ring the wife ought to be regarded as, at the level of the imposition of the duty and determining its scope or content, the kind of consideration which, looking over the horizon as one looks prospectively, ought to defeat the imposition of the duty at all.

That is itself a question to be governed by reasonableness and reasonableness means in the circumstances as appreciated by the parties. We have the advantage, as it were, of the very words of Mr Kirkpatrick and the findings of the trial judge, who, of course, rejected the imposition of a duty, on this aspect of the case. Can I ask your Honours to turn in the appeal book to page 180. Under cross-examination, at line 7, the publican is asked:

You didn’t think of ringing his wife and saying, “Your husband’s here, he’s been a bit abusive, could you come and get him”?........He wasn’t abusive until I asked him whether – whether I could ring his wife.

After that did you think to yourself well I’ll ring his wife, “Your husband’s here, he’s been abusive to me, can you sort him out”?........No.

You’ve done that many, many times, both at Tandara and at the Penguin pub, haven’t you?........I have.

Yeah. “Come and collect so and so, he’s a handful”?........But I don’t – yes, that’s correct.

You’ve done that time after time?........I have.

And because Penguin’s a small community you know your customers and it’s looking after your customers, isn’t it?........That’s right.

And Triabunna/Orford is the same?........True.

Now it may be that in the absence of such evidence one might, with a more or less sheltered life, have not reached that view about the way in which that kind of interaction ought to have been considered in prospect by two people in this position, but we have the advantage of that evidence and it underlies the highly particular and factually specific exercise involved in considering the imposition of the common law duty. That was the publican saying, with all the retrospect that being cross-examined brings to such a case, that what we proposed by way of the scope or content of the duty of care reasonably to be imposed, that that was something that would not have been novel to him. Then we turn to the way in which the trial judge, having had the advantage of observing the publican and the people who had last seen Mr Scott, at page 324, in paragraph 24, at about line 25, after references to the reasonable foreseeability of the disaster, his Honour says:

Contacting his wife, against his wishes and without his knowledge, would have been both reasonable and easy, and would have obviated the risk of harm.

Your Honours appreciate that we have tried to give prominence in our paragraph 15 of our written submissions to the following words of that paragraph which, however brief or concise or perhaps compact, seem to include not only the reasonableness of imposing the duty of that scope or content, but also the finding that would be inevitable of breach and also a finding of causation. I accept as to the last, that it is very spare, indeed, but it is nonetheless a finding to that effect.

Your Honours, we are perforce basing ourselves on that combination of very clear concession by the publican about what in the particular circumstances of this kind of hotel keeping, small community, et cetera, et cetera, and the particular interaction between this publican and this customer that night in light of practice so established by his evidence, together with the value judgment, the assessment by the trial judge of it being both reasonable and easy to ring the wife.

Now, I think that is the limit to which I can go in pointing to the record in answering Justice Heydon’s inquiry as to the reasonableness of ringing the wife, notwithstanding the husband had become abusive or a bit of a handful, and with respect, we should not have to go further than say, the publican had done it before many, many times. It was what the publican regarded, if one can gauge anything from the transcript, as, as it were, de rigueur, in such a situation. For those reasons the trial judge was, with respect, correct to have found that it was both reasonable and easy.

Your Honours, Justice Gummow has drawn to attention annexure A. May I, because this is a critical matter heavily relied upon by the appellants, seek to deal with the argument that quite apart from the private law of chattels, there may also be some statutory matters cut across in the Sullivan v Moody sense by the imposition of a duty of care with the scope or content that we propose. They can be dealt with, we think, relatively quickly as to most of them. I do not need, obviously, in this connection to talk about the Motor Accident (Liabilities and Compensation) Act 1973 or the Fatal Accidents Act 1934, and so we can come on page 4 of the annexure to the Liquor and Accommodation Act 1990.

Section 46 adds nothing to the present case, certainly has not cut across. Section 62, I confess, raises the same problem or paradox as one sees dealt with in Cole. It is to remember that in Cole there were turn-out provisions that have been familiar probably since well before Hogarth illustrated the situation, and they were, most paradoxical or even perverse in connection with the situation in Cole where the complaint was he had been allowed to leave, but in this situation what we are proposing is not cutting across, nor is it cut across by the power in section 62.

Section 78 is very important, we accept, but we – and this applies not only to our side of the record, but also to the publican’s side of the record – do not have the benefit of findings of fact that enable a full appreciation of the extent to which it may or may not have been contradicted. Certainly I do not have the benefit of saying there was a breach of statutory duty, and one sees that the matter is triggered in Tasmania by appearing to be drunk.

Section 79A seems to have nothing to do with the present case, in particular I am not aware that it has ever been suggested there was an offence committed by getting on the motorbike if, as does not seem to have been established, that was ever done on licensed premises, although I should say that 79A may well inform, in relation to the law of chattels and the associated criminal control on assault, that is physical force, it may well inform that analysis.

Section 80 is the teeth in the turn-out provisions, added with the police officer matter. We are not arguing calling the police, as was argued in Cole – or of course was suggested at one stage, we should say, in Cole.

HEYDON J: It was put in cross-examination.

MR WALKER: Yes, it was. We are not arguing that here. It certainly was in fact, I think it was regarded as being within the pleadings. I am not arguing it. We then come to the Criminal Code sections 43, we think that probably has nothing to do with it in relation to the publican not having been at any relevant time, even arguably, a trespasser, but section 45, my learned friend has correctly pointed out its role. However, the duty of care with the scope or content that we are proposing, or course, does not cut across this at all.

Then we come to what we submit are very significant provisions of the Road Safety (Alcohol and Drugs) Act 1970 and, in our submission, the provisions of section 4 show that there is very strong coherence or salutary reinforcement or support in policy terms between the criminal law concerning driving under the influence of alcohol and the scope or content of the duty that we propose. We are bound to concede that section 5 is a rather significant expressed parliamentary regulation of the idea of impounding keys or vehicle.

It is, with respect, a point well made against us that in the face of such specific legislative mandate it is too difficult to contend for a duty of care the scope or content of which would involve, in the circumstances of the particular case, a duty and thus it would appear a right to impound vehicle or keys. We do accept that there cannot be a common law duty to do that which itself constitutes either a tort or a crime. But that does not, for the reasons I have tried to establish, cut across in any way the duty of care with the scope or content for which we now contend.

Section 6 of that Act, like section 4, is powerfully supported or corroborated. The opposite have been cut across, in our submission, by the duty of care with the scope or content for which we now contend. Section 41A of the Traffic Act 1925, like section 5 of the Road Safety (Alcohol and Drugs) Act, is a powerful basis for the argument put against the imposition of any duty of care with a scope or content extending to keeping the keys.

Now, it is not simply or even appropriately to be seen as what might be called an expressio unius argument. It is simply to say that an ad hoc imposition at common law of a duty which requires the regulation and balancing that has been performed by Parliament in, say, section 41A is an unlikely candidate even in highly exceptional circumstances. I am bound to acknowledge the force of that argument. That is why, as refined, the duty of care has a scope or content, as we now contend, which would not cut across those matters.

GUMMOW J: Mr Walker, this accident happened on 24 January 2002, did it not?

MR WALKER: Yes.

GUMMOW J: And the Civil Liability Act was passed and received the royal assent on 19 December 2002 and seems to have commenced thereafter. Perhaps as to some provisions anyway on 4 July 2003, section 4 would render, I think, inapplicable section 5 which has special rules about contributory negligence and intoxication and section 11 as to general principles as to breach of duty of care. Unless we hear from the contrary, can we assume that is so?

MR WALKER: Yes, if it please your Honour. Thank you. I think in answer to Justice Hayne it was that I disclaimed the capacity or willingness to defend everything in the majority reasons. I do not want to elaborate that, it is an uncomfortable position, but, with great respect, I think all of them were anticipated in some questions by your Honours and some submissions by my learned friend in address. In particular, they may be found in paragraphs 53 and 76 respectively of Justices Evans and Tennent’s reasons. I think I need to do at least this by way of self-abnegation.

On page 356 I cannot support the generality without qualification by immediately going to the scope or content as I have refined it. I cannot defend the formulation “to take reasonable care to avoid Mr Scott riding the motor cycle from the hotel whilst intoxicated”. One would have to immediately qualify that. In any event, the language of reasonable care to avoid somebody doing something which is the voluntary act of an autonomous person, notwithstanding it creates risk of self-harm as well as harm to others, is a very difficult matter to justify standing without such qualification as to transform it.

Paragraph 54, I should point out, follows that up by, in the language of foreseeability, concluding that a reasonable person would have foreseen that if he failed to do something to deflect – one of those words which, with respect, our learned friends have appropriately criticised in the reasoning of the majority. One has to move from that to that which, bearing in mind the previous dealings between these parties concerning motorcycle sequestered, motorcycle keys given away and telephone call anticipated for the wife. In our submission, that must provide the limit provided by – set by their own relationship must provide the limit to the content or scope of the reasonable care called for. In paragraph 55 then, we do support the proposition first addressed by Justice Evans “that he should have telephoned Mr Scott’s wife”. I have put what I want about the reasonableness from the point of view of the first question, is there a duty; second question, what is its scope or content and obviously, that then informs, in Shirt terms, the reasonableness of the response. The reasonableness of the response in this case was to offer to do it, to be rebuffed and to treat that, as it were, as full satisfaction of the duty.

We do need the finding, the comment, conclusion by the value judgment by the trial judge about it being both reasonable and easy for him to have telephoned Mrs Scott in order to overcome what might otherwise be the normal expectation that if somebody is so ungrateful or, worse, as to reject an obvious offer of assistance, then the civil law has no place in rendering actionable somebody failing to persist. But your Honours appreciate that we are and could not sensibly argue that there was breach by failing to attempt by forceful assertion or by cunning persuasion to change Mr Scott’s mind about the permission to ring his wife.

I do have to depend and I do depend on the proposition that, as it were, a cat may look at a king and it does not matter that a husband may be embarrassed and profess to be in a position to forbid his wife being contacted, there was no requirement of the law or, we submit, social nicety as appreciated by these two people in this situation that prevented the wife from being called. That is the evidence at page 180 upon which we rely for the particular situation in which these people found themselves.

Your Honours, husbands who have drunk too much and have become obstreperous at a pub are not the only people who in close and important social relations may purport to forbid or seek to prevent nearest and dearest being contacted. The obvious example are juveniles who, of course, may be quite old and dangerously obstreperous themselves. The notion of a publican or a person in a position to influence the course of events who has in some way become subject to a duty of care, the notion that they can or should be put off by such a person saying, :Don’t you dare ring my dad, don’t you dare ring my mum”, in our submission, is absurd, particularly if there is evidence in such a case, like page 180 in this case, that that is something that is routinely done in just such circumstances and for excellent reason.

In our submission, there is nothing in the point that there was anything problematical or fraught presented for the publican by the refusal on the part of the customer to countenance the telephone call being made. The publican had never needed permission to make a phone call. The parties, before the further impairment had been produced, had arranged that that would be the appropriate response against the background of both criminal sanctions on what would otherwise ensue – namely, the riding of the motorcycle – plus the obvious safety consequences of which the publican conceded he was well and self-consciously aware.

There are elements in paragraph 57 that I also cannot maintain in relation to, as it were, a bit of resistance, but not too much, being called for by the duty of care in relation to resisting handing back the motorcycle. It follows from the concession that we have made in our written submissions – and I have repeated that we do not suggest that one could properly envisage a duty of care requiring resistance to what the law of chattels required, let alone at the risk of exciting on a “try it and see” approach some aggressive response by the sub-bailor.

If I now go on a similar exercise – paragraph 76 on page 361. I am afraid I cannot support and do not support the generality of owing a duty of care not to return the motorcycle to Mr Scott such that he could drive, just as, for the reasons I have confessed in relation to my own shortcoming in my written submissions, I cannot support the reference to “control” in paragraph 74.

That would appear to mean – I may be wrong – that on a reading of these reasons, which does not include any refutation of the Chief Justice concerning the applicable law of chattels – to be simply physical dominion. It was locked up and Mr Scott did not have the key to the storeroom. As such, in our submission it has nothing whatever to do with control for the purpose of the law of negligence and I cannot support that proposition. What instead I support is what one finds in particular in paragraph 73. By now, of course, the analysis is probably combining questions of duty, scope and content and breach and probably causation. At about line 12 or so:

There were clearly steps he could have taken. He could simply have refused to hand over the bike –

Your Honours will appreciate that I cannot support that –

and rung Mr Scott’s wife –

I do support that. I cannot support the next bit:

or even taken him home himself.

I would accept as a criticism of that last phrase that what might be called a possible attribute of decent dealing never becomes, by reason of that possible description, the content of an actionable duty of care. I accept that, although obviously a duty of care will have as a scope or content something supplied by consideration inter alia of matters of decency, decent dealing. We do not have an exploration of facts in this case concerning, for example, the notion of who minds the shop while the publican one by one takes home people who cannot do it themselves. So there is, as it were, a filleted approach we take to the reasons for the conclusion which we seek to support.

HEYDON J: Are you going to analyse for us how long it would have taken Mrs Scott to get to the hotel and what was to be done while Mr Scott was requesting the keys and so on?

MR WALKER: Your Honour is now asking me about causation and I am happy to go to that now, that is where I am up to.

HEYDON J: Take your own order.

MR WALKER: Thank you, it is where I am up to. I have to confess, there is an absence in the record. Now, I have to answer the argument against me that this is a matter of speculation. I have the finding by the trial judge that it would have avoided the risk, and that by reason of it not having been done he rode – the actual expression is “as a result” – he rode and met his death. I do not have anything like the requisite time and motion data to add any flesh to those bones.

Your Honours, could I next turn to some matters in relation to the case law in supplementation of what I have already said or written in relation particularly to Cole? One way in which adversely to look at the position for which we contend is to doubt its propriety because it involves imposing a duty to prevent somebody engaging in voluntary risk-taking. At one level of abstraction of course that is a correct description of the effect given to this person with the capacity to influence the course of events – not control, but influence the course of events. That would be the effect for which we contend, as my answer to Justice Heydon concerning causation necessarily involves.

In our submission, that is too high and incompletely qualified a level of abstraction completely to answer the question whether there ought to be imposed a duty of care with a scope or content for which we do contend, and that is because voluntary risk-taking is, of course, an attribute not merely of children but also of many others working in situations, in particular those governed by industrial and occupational health and safety standards, day in day out.

So well recognised is that that both as to causation, and indeed as to contributory negligence in workmen’s cases, inadvertence, inattention and a degree of risk-taking is something that must be taken into account by those who as employers or otherwise have duties of care imposed upon them in relation to safe systems of work or safe premises, safe processes, et cetera.

In our submission, what that shows is that without any particularly specific exception being pronounced – and I stress the word exception being pronounced – depending upon the circumstances the common law does not regard the outcome in question being the prevention of voluntary risk-taking as a hallmark of the inappropriateness of no duty of care.

Rather, the relationship as a whole, as the Court has repeatedly stressed, has to be taken into account and that includes, in the case of risk-taking on scaffolding, risk-taking near dangerous machinery, et cetera, risk-taking by not wearing the earmuffs, et cetera, that includes, in our submission, the control of people by means which are reasonable and which are congruent with, consistent with, usually parliamentary or other regulatory forms of control, all aimed at the same outcome, namely health and safety.

That, in our submission, is extendable, incrementally, to the special case that we posit of the publican and the customer who had, as it were, discussed and considered and made an arrangement to meet what in prospect lay ahead if the man got on his motorbike, if the man was not taken home by his wife. It is for those reasons, in our submission, that arguments about autonomy or arguments about voluntary risk-taking ought not to be seen as automatically, I stress automatically, excluding the possibility in the special relationship of imposing the duty of care of the kind we have posited.

Thus, for example, if one considers the possible analogy with its dangers, between the publican and customer and an employer and an employee, it, in our submission, will not suffice simply to say that an employer’s duty stops short of providing a safe ladder. The, in our submission, safe system of work in the employment context, which is plainly a matter of duty of care driven by an appreciation of the self-interest of the employer in having the employees work, that is, we submit, foundational to the question, will include training and supervision, and will include supervision involving a reminder where standards have become slack.

In other words, volens or contributory negligence approaching 100 per cent, or 100 per cent as it can be in New South Wales, is not, in our submission, the inevitable response to it being shown that a workman ought to have known and probably did know that one had to secure the head of the ladder before climbing up it. In some cases that will be an answer both to the breach and causation. All will supply a swingeing contributory negligence allocation but, in our submission, that does not automatically follow.

It is for those reasons, in our submission, the categories that involve control including gaolers, et cetera, are not the only people who ought to be considered as being susceptible, given special circumstances such as exist in this case, to be in position of a duty of care arising from the self-conscious awareness in prospect of the parties of the risk in question.

FRENCH CJ: It imports the notion that a duty of care based on, and I suppose it is getting close to what I was saying before in terms of reliance, some qualification by the individual of the personal autonomy value. Say I am putting myself in your hands because my judgment about riding the bike at the end of the night may not be good enough for me to make it by myself.

MR WALKER: Really we both know I am not going to be more sensible after some time than I am now. Of course there are difficulties - - -

FRENCH CJ: That is how you pleaded it, I think, or it was pleaded at page 26, paragraph 7 of the statement of claim.

MR WALKER: Yes. In our submission, therefore, particularly apropos paragraph 127 in Stuart v Kirkland-Veenstra, the passage to which my learned friend was directed by Justice Gummow, in the reasons of Justices Crennan and Kiefel, in our submission, naturally, as the language shows of that last sentence, your Honour and Justice Kiefel were most certainly not setting out to be exhaustive in an area where incremental exploration of possibilities is the proper way forward.

HAYNE J: But the notion of voluntary assumption of a duty of care because some consensual arrangement has been made, which seems to be the area with which are presently concerned, really is beginning to tender some radical issues of coherence, radical because voluntary assumption of obligation, at least as to part, sounds in contract.

MR WALKER: Your Honour, one simply cannot contemplate my case without contemplating the non-existent contract, I accept that.

HAYNE J: It seems to bring the contractual fallacy back into the law of tort from a different angle.

MR WALKER: I hope not. I accept that is a risk, the way in which we embark on matters. Can I deal with it this way. It simply cannot be the case that the voluntary assumption of responsibility by a defendant in a negligence case is to be seen as the introduction of a contractual fallacy. That could not be the case because many, many, probably all analysed at one level, cases of liability and negligence being imposed on a defendant involve very considerable voluntary act, a choice of the way to go about something. Also, involves the voluntary act at an anterior but probably still very important level to conduct, for example, a business of that kind which will involve activities of that kind.

HAYNE J: The hinge about which this branch of your argument is turning is the making of the consensual arrangement between publican and customer, :Listen, things might get a bit ugly towards the end of the night”.

MR WALKER: Your Honour, it is an exaggeration of the position factually for me to say that there was any such talk. I have gone only so far as to say it is in the nature of their dealing, bearing in mind that the one was supplying and the other was ingesting alcohol, bearing in mind the acute appreciation of the position of alcohol and road safety shown by the breathalyser, the response to the breathalyser rumour, I can only go so far as to say it must be that they were aware that things would not get better in that regard, could only get worse. I cannot at all point to any dealing which, as it were, made Mr Kirkpatrick, as publican, his brother customer’s keeper in relation to everything that might ensue as things, as Justice Hayne has put to me, turned ugly.

Now, they did turn ugly. In our submission, that was not fanciful or outlandish as a possibility, but I cannot point to the anterior relationship dealing actually by consensus, having looked at that prospect. The prospect, I stress, that we had in mind is being on the road under the influence of the intoxicant. That is the prospect.

GUMMOW J: Mr Walker, is there any evidence that Mrs Scott had a mobile phone? I say that because at 243 she seems only to have got home at 8.00 pm and there was a finding, not all that clear, that her husband left the hotel probably about 8.20.

MR WALKER: Yes, your Honour. The answer is page 50, if your Honour pleases. There is no evidence about the means by which the number would become usable by the publican, apart from the unsuccessful attempt which, it is common ground, occurred.

GUMMOW J: Well, he would have to have known the mobile number, would he not?

MR WALKER: Yes, that is what I mean.

GUMMOW J: He could not look it up in the phone book.

MR WALKER: No, that is also what I mean, yes. However, with whatever fragility, I point to the fact that there were findings that would have obviated the risk.

HEYDON J: Another cause or problem. It is insoluble really. It is no one’s fault:

By 8.30pm I was starting to feel worried because Shane hadn’t arrived home.

Then you have to try and get a precise time at the hotel for when what you say should have happened would have happened. She may have been a long way from the hotel. She may have been driving around somewhere? She left at 8.30 and went:

for a drive to Shane’s work to see if he was working back but he wasn’t there.

MR WALKER: Past the hotel to see if the bike was there, “couldn’t see his bike”. Your Honours, I do not have the reconstruction of distances and times satisfactory to answer those questions, so the record is deficient.

GUMMOW J: But we assume from the answer at page 50 that Mr Ruskin referred to “I had a mobile as well”, that there was also a landline?

MR WALKER: Yes, “at home” is the line at line 6. I confess, I have proceeded on the basis that the home phone number, and it was understood to be readily accessible, because otherwise it is unaccountable in the reasons as to how the capacity to ring was found, as it was by the findings on causation.

GUMMOW J: There is no finding is there that if at some time not precisely specified the publican had had the number, the landline, it would have been answered by the wife?

MR WALKER: I think that seems to be implicit in the finding. I do not have anything more than that.

GUMMOW J: Nor is there any finding as to whether the mobile number would have been accessible for the publican.

MR WALKER: Certainly not that evidence. In relation to distances, Mr Bartlett reminds me that her home, that is, the place where she was at home, in terms of the answer at page 50, was only 700 metres from the bridge - - -

FRENCH CJ: The bridge, six or seven kilometres away?

MR WALKER: Which is six to seven kilometres south of the hotel. Now, I think that is as far as I can take those questions, may it please the Court.

FRENCH CJ: Thank you, Mr Walker. Mr Estcourt.

MR ESTCOURT: Your Honours, I had proposed to bring papers to the lectern only as a matter of caution, but there was one matter just grazed then which I may be able to assist with. That relates to the finding in respect of the availability to Mr Kirkpatrick of Mrs Scott’s telephone numbers. The finding is at page 356 of the appeal book towards the bottom of paragraph 55 of Justice Evans’ decision where his Honour said:

Mr Kirkpatrick knew the Scotts resided a relatively short distance away on the Prosser River. Mrs Scott was available on a home telephone and a mobile telephone. Simple enquiries would have provided Mr Kirkpatrick with one of the required telephone numbers.

That is as high as it can be put.

FRENCH CJ: It was not going to be an inquiry of Mr Scott that he had in mind.

MR ESTCOURT: No, your Honour. Your Honours, apart from that it was our intention to adopt all that Mr Walker had said and to rely on those submissions.

HEYDON J: That finding to which you have drawn attention on page 356 seems to relate back to the trial judge’s finding on page 324 towards the end of his paragraph 24.

MR ESTCOURT: Yes, your Honour.

HEYDON J: With great respect, that is not all that rigorous a passage of reasoning:

such small places that one or two simple enquiries would probably have produced one of the required telephone numbers.

There was no one in one of the bars, and Mr Kirkpatrick was not aware how many people were in the other bar. It is a bit speculative.

MR ESTCOURT: It cannot be put any higher than that, your Honour, no.

GUMMOW J: Nor is it explained whether the time scale would mean that the wife would have been at home when the land line was used.

MR ESTCOURT: No, your Honour. The exchange that has just taken place with Mr Walker is complete in that respect.

GUMMOW J: All right.

MR ESTCOURT: Yes, may it please, your Honours.

FRENCH CJ: Thank you, Mr Estcourt. Yes, Mr Ruskin.

MR RUSKIN: Thank you, your Honour. There are a couple of transcript matters. At line 25, page 183 of the appeal book there is something about the phones as well:

And somewhere in your system you would have had probably account details for him, just that he was Shane John Scott, worked at the council, what his address was and what his telephone number was?...We didn’t usually have – no, we didn’t have – I don’t think we had a telephone number or address, just a card system we operated in the bottle shop for certain customers.

Certain customers who you knew you could trust?...Yes . . .

But you have no recollection of looking in the telephone book . . . No.

So that the evidence was towards the end that Mr Scott was probably the only person left in the hotel, so as the Chief Justice has said, it would be pretty tough to ask him for the phone number of his wife, having been told not to do so.

The next short reference to transcript is in respect to what our learned friend, Mr Walker, said about easy to ring the wife. There is some evidence that is important about that at 190 of the transcript, just a couple of short references. It was not so easy to ring Mrs Scott, in the mind of Mr Kirkpatrick, which is what we have been talking about. At 190, about line 20:

Can you think of any other reason that night, with those hallmarks and features, to have caused him to react as he did?

That is with the crude and blunt refusal with respect to ringing the wife.

I don’t know much about his family life. There could have been something there.

He didn’t talk about it though, did he?........He didn’t. But as soon as I mentioned his wife, that’s when it all started – or he and has wife.

Then jump to page 191 at line 25:

Come on Mr Kirkpatrick, you’ve told us he was agitated, offensive ?-....People can be like that without being affected by alcohol.

But you haven’t suggested an alternative reason, have you, for the deceased that night?....As soon as I mentioned his wife – ringing his wife – that’s when it all started. Now, I don’t know what is family life was like. He could have had troubles at home. He could have – obviously he had troubles at work.

All that is saying is that Mr Kirkpatrick was struck by the phraseology of that refusal to ring his wife and, without wanting to be too grammatical about it, that one of the expletive adjectives qualified his wife. He thought there was something about his wife that it made it tough and so that should be put in the mix is all we are saying.

In respect to the reference by our friend to the common law having certain categories where voluntary risk behaviour is nonetheless controlled or there is a duty of care with respect to it, can we just take the Court to the two lines in Kirkland-Veenstra where the court says what we say is so important to apply to this case. It is really at paragraph [112]. It makes the difference here. The Court says this:

There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition.

Much of the discussion about ringing the wife is about he might have had the capacity to do so, though we now have perhaps some doubt about that, but to have the capacity does not mean he has the duty to do so and the duty is enmeshed in this notion of having the authority and we sought to say to the Court that there is just no factual basis for having any authority and it really comes back to what the arrangement was. Our friend properly, with respect, conceding that it is not a deliberately filling up with alcohol case, it is not a case about reliance, as the Chief Justice has explored, this is not a case where the parties – you could infer that Mr Scott relied on him for protection. So what was the arrangement? There is plenty of evidence about foreseeability, putting it best for our friends, but foreseeability alone

does not found the duty. So what was the arrangement and it gets back to the fact that it was a very informal arrangement to put his bike away at his convenience to avoid a breathalyser. It is a very large step to say that the ingredients of a duty of care to protect him from himself thus arises.

GUMMOW J: Mr Ruskin, on this question of breach, if you just look at page 377 at ground 12 of the notice of appeal, your side saying:

The majority of the Full Court erred in holding that, assuming a duty of care, the appellants breached the duty because the second appellant failed . . .

to telephone.

MR RUSKIN: Yes.

GUMMOW J: This expression “failed to telephone” invites some further analysis, does it not, on an evidentiary level?

MR RUSKIN: What we sought to say here was this. Justice Evans said - - -

GUMMOW J: Which would run into causation, perhaps, as well. Is that right?

MR RUSKIN: Yes; that is right, your Honour. And what difference would it have made even if it was appropriate to do so. Those are our submissions in reply.

FRENCH CJ: Thank you, Mr Ruskin. The Court will reserve its decision. The Court will adjourn until 10.15 tomorrow morning.

AT 12.37 PM THE MATTER WAS ADJOURNED