In Widdowson v. Rockwell, 2017 BCSC 385, a plaintiff was injured walking home from work when he was struck by a heavily intoxicated driver. Prior to the accident, the defendant stopped at Cambie Malone’s bar for drinks where he consumed liquor. He then stopped briefly at his house before continuing on. He was arrested at the scene of the accident. When advised about his right to counsel, the defendant was so intoxicated he stated he “wanted to speak with Ozzie Osbourne and started to play air guitar with his hands”.
The plaintiff applied for summary trial on the issue of whether the pub was liable for his injuries as a commercial host. The court was tasked with determining whether the pub had any legal responsibility for the plaintiff’s s injuries and, if so, how fault for the accident should be allocated as between the defendant and the pub.
According to the toxicology expert, the defendant had a blood alcohol level of .334 at the time of the accident, and he would have had to consume the equivalent of 26.6 ounces of liquor prior to driving to reach that level of intoxication.
Many restaurants and pubs have written policies and procedures for serving alcohol and waitstaff are required to have the “Serving it Right” certification. Cambie Malone had a written policy which stated inter alia:
“You must refuse the person service, have the person removed and see that they depart safely. Intoxicated persons must NOT be permitted to drive. It is your duty to ensure that a safe ride home is used. This is a crucial responsibility of everyone in the alcohol service industry.”
The staff provided affidavits about the night the defendant visited the pub. However, the court didn’t get them very much weight. The court found that all affidavits contained the same verbatim paragraphs with respect to abiding by the pubs written policies and procedures and the court found that the words in the affidavit had been clearly manufactured by counsel to be adopted by the witness and were “lawyer speak”.
More interestingly, on cross examination of the employees, they gave evidence that their actual day to day conduct was strikingly different than the written policy and procedures. A waitress testified that her normal practice when seeing a drunk person at the bar would be to “give them water and wait for them to leave on their own”. The bartender testified that four people consuming eight beer, four double vodkas, and six shooters in the span of two hours would “not attract his attention”. The defendant did not participate in the proceedings and the only evidence was from his discovery transcript in which he stated that he consumed only 2.5 bottles of beer at the pub.
Despite the pub’s written policies and procedures, Justice Kent concluded that the reality of day-to-day practice in this establishment was that, “intervention depends on how the patrons are behaving and would not likely occur if they do not act like they are drunk”.
Ultimately, Mr. Justice Kent was tasked with sifting through the evidence to determine when and where the defendant consumed all the liquor to achieve his elevated BAC level at the time of the accident. He found that based on the evidence, the only reasonable inference is that the defendant consumed the liquor at the pub.
The Province of Ontario has a specific clause in their Liqour Licence Act, R.S.O. 1990 which imposes civil liability on commercial hosts. British Columbia has no such equivalent, although the Liqour Control and Licensing Act, RSBC 1996 does impose mandatory obligations on a commercial host not to sell or give liquor to an intoxicated person and not to permit a person to become intoxicated. The law in BC with respect to liability of commercial hosts is based on common law negligence principles which require a plaintiff to prove on the balance of probabilities:
“1. the defendant owed the plaintiff a duty of care (to avoid acts or omissions which might be reasonably foreseeable to cause injury to the latter);
2. the defendant’s acts or omissions breached the standard of care applicable to that duty;
3. the plaintiff suffered damage of the sort that is recognized and compensable in law; and
4. the defendant’s breach was causative, in both fact and law, of the plaintiff’s damage.” (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 96;Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3;Ediger v. Johnston, 2013 SCC 18 at para. 24)
Based on the evidence of the staff, Justice Kent found that the pub’s employees utterly failed in abiding by their own employer’s directive that drunk persons must not be permitted to drive. He concluded that their conduct was negligent and the pub breached its duty of care to the plaintiff by not enforcing their policy of not permitting intoxicated persons to drive.
The pub tried to argue that since the defendant had arrived at his house before continuing on in his car, causing the accident, the pub’s duty of care had ended. Justice Kent rejected this argument as the defendant’s intoxication was still present at the time of the accident. He ultimately found that the pub was 25% responsible for the accident. This case illustrates the importance of liquor serving establishments not only having policies and procedures with respect to intoxication, but actually implementing them in day to day business. Those who fail to do so may find their establishment liable for injuries caused by an intoxicated guest.
If you or anyone you know has been injured by a drunk driver, reach out to the goodfirm personal injury lawyers at 604.264.5550 for a free consultation.