Case Study
You are the licensee of an inner city tapas restaurant with an on licence permit. Your clientele is mainly young professionals. One particular client, Larry, has become a problem. Larry comes in regularly on Friday night and appears to have an addiction to sangria and an aversion to Spanish food. The consequence is that he becomes drunk very quickly and often argumentative with both staff and other customers. As a result your clients are dropping off.
Part A
What are your rights and obligations in relation to Larry, your staff and other clients? (6 marks)
It gets worse, one Friday night, Larry leaves the restaurant. Staff have observed him to be slurring his speech, spilling sangria over the table cloth and stumbling when he gets out of his chair. They watch him leave, but unknown to them, he walks down a side lane to the back of the restaurant to use an old, unused toilet, situated at the back of the premises. The door of the toilet has a lock but it is has rusted and is unusable. While using the toilet, Larry leans on the wall which collapses, leaving Larry seriously injured.
Part B
As the licensee are you liable for Larry's injuries? In your answer consider negligence, vicarious liability and occupier's liability and the Wrongs Act 1958.
Answer
Introduction:
The present subject matter of the case is based on the legal provisions of negligence, vicarious liability, occupier’s liability. Certain provision regarding the Wrong Act 1958 has also been attracted in this case. It can be stated that the provision regarding the Wrongs Act comprised of the provision regarding all the related subject matter. In this report, an attempt has been made to determine the rights and duties of the licensee of the restaurant regarding the staffs and the provision regarding the claim made by any person who has been affected by the negligent act of the owner.
Discussion:
Part A
Rights and obligation of the occupier:
In Australia, there are certain duties and obligations mentioned for the licensee or the occupiers. The duties and obligations of the licensee or the occupiers are regulated by the Wrong’s Act (Brett and Tormey 2014). Before getting into the main point, it is necessary to understand the differences between invitees and licensee. It has been mentioned under the law that the licensee holds a much responsibility than the invitee (Barker 2015). In Dunster v Abbott (1954) 1 W.L.R. 58, a good differences has been pointed out regarding the licensee and invitee. It has been stated that when a person enters in the premises with the permission, he is a licensee and until there is any business made up between the two, the person will be treated as invitee.
However, the Wrongs Act has pointed out certain duties and obligations of the occupiers by way of defining the term. It has been mentioned under section 14A of the Act, an occupier of premises has certain duties to the tenants regarding the maintenance of the premises. It has also been mentioned that if there is any laxity observed regarding the same, he will be personally liable for breach of duty and the same will be treated as failure to foresee the risk (Bourke and Lucadou-Wells 2015). It has been observed in Indermaur v Domes (1866) L.R. 1 C.P. 274 that before determine the obligations and responsibility of the occupiers, it is necessary to analyse all the points very carefully and it should also be discussed whether the victim has any contribution regarding the accident or not.
In Lipman v Clindinnen (1932) 46 C.L.R. 550, it has been observed that it is the utmost duty of the occupier to take all the reasonable duty regarding the premises and he must repair all the risks that can be endangered the life of others. However, an exception stated the risks must be within the knowledge of the occupier.
There are certain legal liabilities exist regarding the intoxicated persons and there are numerous cases where the court observed that it is not mandatory to know about the level of intoxication of a person but a licensee can refused to serve him alcohol for his behaviour (Goudkamp and Plunkett 2017).
In this case, it has been observed that the Larry was intoxicated all the times and he used to create ruckus at the bar. The licensee of that restaurant can disallow him to get alcohol anymore and he can direct his staffs to serve him alcohol or enter him into the premises (Ryan 2017).
Part B
Liability of licensee:
In this case, it has been observed that Larry was popular for his drunken behaviour and he used to make brawl with the staff of the restaurant. It has been mentioned in the case that on the fateful day, Larry leaves the room and went to an unused washroom and sustained injury due to collapse. It has been mentioned under the law that liability imposed on the licensee who over-consumed alcohol to reach them to their home safely. It has also been stated that the licensee is responsible to the person who has left the premises and these duties are not ended after leaving the premises. The licensee or the staffs are responsible to secure the interest of the person and if the duty to take reasonable care could not be exercised properly, they will be liable under the Negligence Act (McGivern and Handford 2015).
There are certain duties that are mentioned under the Wrong Act regarding the occupier under section 14B. It has been mentioned that they must have to maintain all the rules carefully and with reasonable cause. The occupier should be responsible for the probable injuries if sustained from the premises he possessed. He must have to take care of all the possible steps to overcome the danger. It has been mentioned under section 14G of the Act that in case of intoxication, it is necessary to establish whether the plaintiff is responsible for the injury, he has sustained (Handford and McGivern 2015).
In this case, it has been observed that Larry went to an unused washroom after consuming alcohol from the restaurant. The staffs of the restaurant saw him to leave the hotel. However, it was their duty to drop him at home but they were unable to perform their duty. The immediate effect of the same was that he got collapsed in the washroom and got injured. It can be stated that the staffs are responsible for the same and they failed to perform their duty of care.
The provision regarding the vicarious liability will also apply in this case. It has been stated that the staff of the restaurant saw him to leave the hotel therefore, the staffs are responsible for non-performing the duties properly. Larry can bring action against the licensee as under the principle of vicarious liability, it has been stated that the masters are liable for the wrongful acts of the servant (Barry 2017).
Conclusion:
Therefore, it can be stated that as the staffs of the restaurant were saw Larry to leave the hotel and did not tried to drop him at his home and held responsible for the accident. By applying the principle of vicarious liability, it can be stated that the licensee of the restaurant can also be held liable for the negligent acts of the staffs.
Reference:
Barker, K., 2015. Negligent Misstatement in Australia-Resolving the Uncertain Legacy of Esanda: Chapter 13.
Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent (Sydney, NSW), (140), p.12.
Bourke, J.F. and Lucadou-Wells, R., 2015. Teaching Business Law: Some Ethical Dimensions from Australia.
Brett, F. and Tormey, W., 2014. Alcohol, duty-of-care and common law–where do the consequences of drunken behaviour lie?. Medico-Legal Journal, 82(3), pp.119-123.
Goudkamp, J. and Plunkett, J., 2017. Vicarious liability in Australia: on the move?. Oxford University Commonwealth Law Journal, pp.1-9.
Handford, P. and McGivern, B., 2015. Two Problems of Occupiers' Liability Part One--The Occupiers' Liability Acts and the Common Law.
McGivern, B. and Handford, P., 2015. Two problems of occupiers' liability: Part two-the occupiers' liability and civil liability legislation. Melb. UL Rev., 39, p.507.
Ryan, D., 2017. From opportunity to occasion: vicarious liability in the high court of australia. the cambridge law journal, 76(1), pp.14-18
