Publicans did not have duty of care to man in fatal crash

 

THE HIGH Court has ruled two publicans did not owe a duty of care to an elderly man whom they had served up to six pints of Guinness before he drove away and died in a road incident in which a woman was also killed.

Mr Justice Kevin Feeney yesterday dismissed a claim that bar owners Séamus and Concepta Kelly acted negligently in serving up to six pints to John Connolly (79) and then not preventing him from driving away from their pub.

The Kellys did not owe a duty of care as claimed to Mr Connolly and no duty could be extended to any persons killed or injured due to his driving, the judge ruled. He rejected arguments the publicans breached the criminal law by supplying alcohol to a drunken person and should not have served Mr Connolly any more than two pints, given he was likely to drive a car.

It was not established Mr Connolly was a drunken person within the meaning of the Intoxicating Liquor Act 2003 and there was no legal basis for restraining him, the judge said. Such an argument was impractical and would place “an impossible burden” on publicans, who would have to question all customers on a recurring basis.

The duty of care which was sought to be placed on the Kellys included an obligation on publicans to restrain, assault or even falsely imprison those whom they believed to be unfit to drive, he said. This would result in the publicans committing a criminal act.

It was not up to the courts to impose such obligations, but for the legislature to provide publicans with the necessary powers to carry out and enforce the steps to comply with such duty, he added.

He was delivering judgment on what lawyers for Mr Connolly had described as a “ground-breaking” action with implications for other publicans.

The court was told Mr Connolly, Kinlough, Co Leitrim, and Anne McSorley, Antrim Road, Belfast, died after vehicles driven by Mr Connolly and by Mary Flanagan, mother of Ms McSorley, collided at Bunduff Bridge on the main Sligo to Bundoran road on March 31st, 2005, about two miles from Mr Connolly’s home.

A postmortem revealed Mr Connolly was roughly three times over the drink-driving limit.

Ms Flanagan, Oakland Road, Omagh, Co Tyrone, who was seriously injured, had sued the estate of Mr Connolly alleging the collision was due to his negligence and breach of duty over his driving. Liability was admitted and that case was settled for €275,000.

Mr Connolly’s estate brought proceedings seeking an indemnity or contribution from the two publicans, as owners and operators of the Diamond Bar, Tullaghan, Co Leitrim, in relation to that award. The Kellys denied any liability and contended Mr Connolly was totally to blame.

Mr Justice Feeney said there was no Irish court decision concerning the duty of care of a publican in a case such as this. He preferred the approach of the UK and Australian courts – which had found no duty of care – to the approach of the Canadian courts, placing obligations on publicans.

In this case, the publicans owed no duty of care to Mr Connolly, he found. That decision was based on findings including that, before the incident, Mr Connolly was not a person who was so intoxicated he could not look after his safety.

He accepted evidence Mr Connolly regularly drank in the pub, but did not do so in a manner indicating he was intoxicated. He also accepted that, on some occasions, Mr Connolly had decided not to drive home himself after drinking.

He accepted the Kellys’ evidence they never had to intervene to ask Mr Connolly not to drive home. He also accepted that Mr Connolly was served between five and six pints of Guinness and food at the bar between 11.30am and 3.15pm on the day of the incident, and neither of the Kellys was in the bar when Mr Connolly left it.

The incident occurred at 4pm, five minutes drive from the Diamond Bar and about 40 minutes after Mr Connolly had left, the judge said. Given the level of alcohol in Mr Connolly’s blood at time of death, it was probable he consumed more alcohol elsewhere that day, the judge added.