The Court of Appeal released an interesting decision this afternoon, dealing with several issues. Most significantly, the case addressed the extent to which a commercial host, found to have over-served both a driver and a passenger, can be held responsible for a portion of the passenger’s contributory negligence for having accepted a drive from the intoxicated driver.
The plaintiff was injured in a single-car accident. He sued (1) the owner and driver of the vehicle in which he had been a passenger and (2) the tavern in which he and the driver had been drinking before setting out in the vehicle. At trial, the defendants, as a group, admitted 100% fault for the accident. The trial judge thought that the only liability issue that the jury had to consider was the extent to which the plaintiff had been contributorily negligent for failing to wear a seatbelt and for failing to take reasonable precautions for his own safety. The jury found the plaintiff 17.5% contributorily negligent for having failed to wear a seatbelt and 18% negligent for having failed to take precautions for his own safety (i.e., having agreed to be driven by the intoxicated driver). Thus, the plaintiff’s total contributory negligence was 35.5 per cent.
On appeal, the Court of Appeal held that the trial judge had erred because the jury was “not asked to quantify the tavern’s responsibility for (1) over-serving the appellant and its contribution to his failure to exercise proper judgment in taking care for his own safety, and (2) failing to take appropriate steps to ensure that he got home safely”. Rather than send the case back for a new trial, which would be the more usual result, the Court of Appeal elected to do the apportionment itself.
The Court held that the plaintiff had to bear some responsibility for his actions, even though he had become intoxicated as a result of having been over-served by the tavern. But it felt that the tavern’s fault had also contributed to the plaintiff’s failure to take precautions for his own safety and that the tavern was therefore liable to the plaintiff for some of the contributory negligence that the jury had found.
So, of the plaintiff’s 35.5% contributory negligence (as found by the jury at trial), the Court of Appeal apportioned 60% to the plaintiff himself and 40% to the tavern. As a result, the plaintiff’s contributory negligence was reduced from 35.5% to 21.3% (the latter being 60% of 35.5%), with the tavern being liable for the remaining 14.2% of the plaintiff’s original 35.5% contributory negligence. This meant that the defendants (the tavern and the owner and driver of the vehicle) ended up with 78.7% (100%-21.3%) of the overall liability. (The defendants had all been represented by the same lawyer at trial. Because they had collectively admitted 100% fault for the accident, liability was never apportioned as among the individual defendants. Thus, it is impossible to say how much of the 78.7% liability borne by the defendants as a group, was specifically attributable to the tavern’s negligence in having over-served the defendant driver.)
The Court of Appeal said that the case “brings into focus the distinction between the duty of care that a commercial host owes to its patrons who become intoxicated and unable to properly look after themselves, and the duty of care that a commercial host owes to third parties (including willing passengers) injured by a patron who becomes inebriated in its establishment”. It explained its decision, to find the tavern partly to blame for the plaintiff’s failure to take precautions for his own safety: “the tavern ought also to bear some significant responsibility, and logically, it should bear a similar level of responsibility for allowing the passenger to become impaired as for the driver, subject to the additional factor that although the driver did not appear to be impaired, the tavern knew that he was.”
There was another interesting aspect of this case. The plaintiff argued that the Victims’ Bill of Rights, 1995 should entitle him to costs on a solicitor-client basis. That statute, which came into force in 1996, provides that in a civil action brought by the victim of a crime, costs should be awarded on a solicitor and client basis, unless the court orders otherwise.
The Court of Appeal questioned whether that statute applied here, given that the accident had taken place before the Act came into force. But it concluded that it did not need to decide this issue because it felt that the trial judge had acted within his discretion in refusing to award costs on a solicitor and client basis, where the plaintiff was not “innocent or vulnerable”.