Publicans fear lawsuits for selling drink

Class Actions:  Lawyers say a case against the drinks industry would be hard to win, as it would be difficult to prove negligence. Others say someone is bound to try. It's a thought which makes the drinks bosses shake in their boots: could they be facing a similar fate as their colleagues in the tobacco industry?

Two businesses, each selling a legal drug, but only one is having to endure what seems like a never ending stream of lawsuits.

Only one so far, that is.

Within and without the drinks industry there is a general view that it's only a matter of time before a case is brought to court. In the US last month a New York maintenance worker began proceedings against four fast-food chains, including McDonalds, for contributing to his obesity, heart disease and diabetes, suggesting it won't be long before the drinks industry ends up in the dock.

Some claims against alcohol companies have been lodged in US courts, including women who allege that alcohol consumption while they were pregnant resulted in their children being born with deformities.

While none of the cases has yet come to court (some having been stifled by understandably strong opposition from the industry) it is clear that drinks firms are worried. A number of such firms in the US have begun putting health warning on cans and bottles, cautioning pregnant women and drivers about the ill effects of alcohol.

Mr Stephen Rowan, director of the Rutland Centre, Dublin, is one of those who believes litigation is inevitable. "You think of all that violence, all those crimes, all those people killed in drink driving incidents, and you have to ask yourself: When will the drinks manufacturers be held accountable?

"Given the litigious nature of society, I think such companies will be blamed and sued in public courtrooms. I think it's very probable this possibility will become a fact in the very near future," he says. "As to the success of litigation, however, I can't tell."

This is the key issue. It's one thing taking a case against the alcohol companies. It's another thing winning one.

Personal injury lawyers in Ireland are unaware of any cases being taken, and this, they say, reflects their chances of success.

Solicitor Mr Hugh Ward, of Ward & Fitzpatrick, which is handling more than 2,000 claims on behalf of smokers against tobacco companies, says: "Personally, I think it's a different subject altogether because there are studies that show alcohol in moderation is actually good for you, whereas there is no safe cigarette."

He notes there are similarities around dependency or addition, and also around the possible need for labelling, particularly with so-called alcopops. In addition, he says, "I'm aware of the social issues around alcohol and of the damage it does cause. But talking from a legal or theoretical viewpoint, it is difficult to see how to prove negligence."

While lawyers see little potential in suing the drinks manufacturers, however, a different story applies to suing suppliers, particularly publicans. The Irish courts have yet to make a decision on the matter of a publican's liability for accidents resulting from customers being under the influence.

A case four years ago in which a Co Cork man sued two pubs which served him the night he crashed his van into a wall, causing him to be paralysed from the neck down, was settled out of court for €127,000. By not being heard in court, as the claimant said he desired, it avoided setting a legal precedent.

Such a precedent is feared by publicans and insurers, which are wary of copy-cat claims, and are understood to have settled other cases to avoid that eventuality.

The only case heard in Ireland in recent years was that of a man who sued a bar in Cookstown, Co Tyrone, after falling off a stool while drunk, causing him to break his neck. A High Court judge in Belfast ruled against the claimant but not before giving publicans a chilling warning by saying the claimant, if he had been successful, would have been entitled to more than £1 million in damages.

Some campaigners believe the law should be strengthened to create specific scope for "server liability". Legislation enforcing this concept was introduced in the US almost 20 years ago, and according to Mr Rowan, it led to a reduction in both alcohol consumption and drink-related deaths.

Under the legislation, the family of someone killed in a drink-driving incident can sue not just the driver but the premises which served his or her last drink.

As for the drinks industry, not surprisingly perhaps, it is playing down the risk of litigation.

Referring to last month's fast food lawsuit, Mr Pat Barry, corporate affairs director of Guinness UDV, says: "That is something that is happening in the States. It's quite a jump to say something like that could happen here. Fortunately, we are not that far advanced - or behind - as the States in that sort of area."

He notes: "People relate alcohol to cigarettes but we would draw an enormous distinction because cigarettes damage health and kill people whereas alcohol does not. There are many studies which show alcohol in moderation is good for you. A problem arises only where abuse arises."

"I think the industry would feel there are other things that need to be done first (to combat alcohol abuse), although that view might change," Mr Barry adds.

Whatever the industry's view, it may well be forced to introduce labelling by the Government before long. Mr Rowan, a member of the Department of Health's Strategic Task Force on Alcohol, says it has considered recommending compulsory health warnings on alcohol products "but I don't think there is a consensus as to where to go from here".

He says: "I have never heard of a labelling programme making much of a difference. But it can't do any harm, and it might help a little."

In his view, the most important thing is to try to effect a revolution in thinking around alcohol in Irish society. "The object of the exercise is not to beat up the drinks companies but to help people, and protect them from abuse."

He says other matters "perhaps require more urgent attention. For example, a total ban on drinks advertising in Irish sports stadiums would be more effective than a three, five or seven-year law suit, in my opinion."