Flanagan v Houlihan

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Feeney
• Judgment Date: 04 March 2011
• Neutral Citation: [2011] IEHC 105
• Docket Number: [2006 No.
• Date: 04 March 2011

[2011] IEHC 105

THE HIGH COURT

[No. 4199 P/2006]

Flanagan v Houlihan & Kelly

BETWEEN

MARY FLANAGAN

PLAINTIFF

AND

MARY HOULIHAN

DEFENDANT

AND

CONCEPTA KELLY AND SEAMUS KELLY

THIRD PARTIES

INTOXICATION LIQUOR ACT 2003 PART 2

INTOXICATION LIQUOR ACT 2003 S4

INTOXICATION LIQUOR ACT 2003 S4(2)

INTOXICATION LIQUOR ACT 2003 S9

HUSSEY v TWOMEY & ORS 2009 3 IR 293 2009I ILRM 321

JOY v NEWELL (T/A) COPPER ROOM) 2000 NI 91

JORDAN HOUSE v MENOW 1974 SCR 239

O'KEEFE v HICKEY & ORS 2009 2 IR 302

PROSSER & KEETON LAW OF TORTS 5ED S53 NOTE 27 1988

MCGEE v CHALFONT 2D 980 1991 KAN

LEPPEKE SEGUARA 632 P 2 D 1057 1981 COLO

CANADA TRUST v PORTER 2 ACWS 2D 428 (1980)

SCHIMDT v SHARPE 1983 27 CCLT 1

STEWART v PETTIE 1995 1 SCR 131

BARRETT v MINISTRY FOR DEFENCE 1995 1 WLR 1217

JEBSON v MINISTRY FOR DEFENCE 2000 1 WLR 2055

GRIFFITHS v BROWN 1998 TIMES OCTOBER 23 QBD

COLE v SIUTH TWEED HEADS RUGBY LEAGUE FOOTBALL CLUB LTD & ANOR 2004 HCA 29

STEWART v PETTIE JORDAN HOUSE 1995 1 SCR 131 SCR PARA 132

C.A.L. NO.14 PTY LTD T/A TANDARA MOTOR INN & ORS v MOTOR ACCIDENTS INSURANCE BOARD 2009 HCA 47

ADEELS PALACE PTY LTD v MOUBARAK 2009 HCA 42

HALL v KENNEDY & RUDLEDGE T/A WHITE HOUSE UNREP MORRIS 20.12.1993 1994/10/3009

BRIDIE MURPHY v PHYLLIS O'BRIEN 1987 6 ILT NS 75 CC

DONOGHUE v STEVENSON 1932 AC 562

WLASH v RYAN UNREP LAVAN 12.2.1993 1993/5/1474

MURPHY v BALLYCLOUGH CO-OPERATIVE LTD & ORS UNREP MURPHY 27.02.1998 1998/26/ 10580

BRESLIN v CORCORAN 2003 IR 203

INTOXICATION LIQUOR ACT 2003

NEGLIGENCE

Licensed premises

Duty of care - Suppliers of alcohol to customer - Liability of proprietor of licensed premises to persons who might be caused harm by customer - Customer served intoxicating liquor by third parties prior to driving motor vehicle - Whether duty of care on third parties as suppliers of alcohol to protect customer from risk resulting from self-induced intoxication - Whether foreseeable that if breached, customer might cause harm to others when driving motor vehicle - Hall v Kennedy (Unrep, Morris J, 20/12/1993), Joy v Newell (t/a Copper Room) [2000] NI 91, Jebson v Ministry of Defence [2000] 1 WLR 2055, Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52, CAL (No 14) Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 260 ALR 606 approved; Stewart v Pettie [1995] 1 SCR 131 distinguished; O'Keeffe v Hickey [2008] IESC [2009] 2 IR 302 applied - - Intoxicating Liquor Act 2003 (No 31), part 2, ss 2, 4, 9 - Road Traffic Act 2010 (No 25) - Claim dismissed (2006/4199P - Feeney J - 4/3/2011) [2011] IEHC 105

Flanagan v Houlihan

Facts: The issue arose as to whether third party publicans owed a duty of care to intoxicated individuals whom they knew would drive a motor vehicle after the consumption of alcohol and whether the duty that was foreseeable if breached would cause harm to others. The defendant pleaded that the third party had negligently served a patron alcohol knowing that he intended to drive a motor vehicle, who had become involved in a fatal traffic accident thereafter. The Court considered also the provisions of the Intoxicating Liquor Act 2003 and the Road Traffic Act 2010.

Held by Feeney J. that the duty of care sought to be imposed by the defendant on third parties included obligations which would result in the publican committing a tort or criminal offence. To place such an obligation and to provide for the legislative balance enabling this was a matter for the legislature and not theCcourts. The Court was satisfied that there was generally no duty of care owed to a customer. The defendant had failed to identify or establish any other ground to support there being a duty of care owed to third party victims. The Court was satisfied that there was no legal basis for the imposition of the duty of care contended for and it followed that the defendant's claim against the third parties should be dismissed.

Reporter: E.F.

1 Judgment of Mr. Justice Feeney delivered on the 4th day of March, 2011.

2 1. The background to the third party issue which is the subject matter of this judgment arises out of an appalling and fatal traffic accident which occurred on the 31 ^st March, 2005. On that day Mary Flanagan was driving her car on the main Sligo to Bundoran road near Bunduff Bridge, Tullaghan, when she was involved in a collision with another motor vehicle. She was travelling in the direction of Bundoran and was accompanied by her daughter, Anne MacSorley. The collision took place at approximately 4pm on a straight stretch of road adjacent to a shop known as "All Cash Stores". The road at the point of impact was wide with each carriageway being over twelve feet, six inches in width and there was a hard shoulder on each side. The total road width was over 43 feet. Mary Flanagan's car collided with a car driven by the late John (also known as Jonnie) Connolly which was heading in the direction of Sligo. The cause of the collision was that John Connolly's car crossed on to the incorrect side of the road and collided with Mary Flanagan's oncoming car some four feet and eight inches over the centre line. The collision resulted in two fatalities, one being John Connolly, the driver of the car which crossed on to the incorrect side, the other being Anne MacSorley, who was a front seat passenger in her mother's car.

3 2 1.2 There is no dispute but that the accident was caused by the driving of the late John Connolly in that he drove on to the incorrect side of the road without warning and collided with an oncoming car. Not only were John Connolly and Anne MacSorley killed as a result of the accident but Mary Flanagan sustained serious personal injuries. She commenced a claim in relation to the personal injuries and damages that she sustained in the accident. Proceedings were brought against the nominated representative of John Connolly (deceased), namely, Mary Houlihan, the defendant. In March 2007 the defendant brought an application seeking to join Concepta Kelly and Seamus Kelly as third parties to the proceedings. An order joining them as third parties was made by this Court on the 5 ^th March, 2007. The claim against the third parties was that they or their servants or agents were negligent and in breach of duty in serving alcohol to the late John Connolly prior to the collision and it was claimed that alcohol had been served to him in circumstances where the third parties knew or ought to have known that, following the consumption of the alcohol, John Connolly would drive a motor vehicle on the public roadway and would thereby constitute a danger to himself and other road users.

4 3 1.3 The defendant served a third party statement of claim wherein it was pleaded that it had been admitted on behalf of the defendant that there was negligence on the part of John Connolly (deceased) in and about the driving of his motor vehicle at the material time and it was further pleaded that that negligence was caused or contributed to by the deceased being under the influence of alcohol. The defendant also pleaded that the collision the subject matter of the proceedings and the personal injuries and loss arising therefrom as suffered by the plaintiff were caused or contributed to by the negligence and breach of duty on the part of the third parties. The third parties were identified as being at all material times the owners and occupiers of a public house known as the Diamond Bar, Tullaghan, County Leitrim. The defendant pleaded that the third parties or their servants or agents served and continued to serve alcohol to John Connolly immediately prior to him being involved in the collision and that they knew, as was his custom that he intended driving a motor vehicle having consumed alcohol. The particulars of negligence and breach of duty alleged against the third parties as set out in the third party statement of claim served by the defendant were that the third parties, one or both of them, their servants or agents, were negligent and in breach of duty in:

5 (a) Selling and serving alcohol to John Connolly (deceased) when they knew or ought to have known that he intended driving a motor vehicle.

6 (b) Serving an excessive quantity of alcohol to John Connolly (deceased) when they knew or ought to have known that he intended driving a motor vehicle.

7 (c) Failing to take any or any adequate steps to prevent John Connolly (deceased) driving his motor vehicle when they knew or ought to have known that he was intoxicated.

8 (d) Continuing to serve alcohol to John Connolly (deceased) when they knew or ought to have known that he had consumed an excessive quantity of alcohol and was unfit to drive.

9 (e) The defendant reserves the right to adduce further particulars.

10 Relying on those particulars the defendant claimed an indemnity or in the alternative a contribution in respect of the plaintiff's claim and costs.

11 4 1.4 Particulars were raised by the solicitors on behalf of the third parties and in replies to particulars it was claimed that John Connolly (deceased) had consumed a minimum of five to six pints of Guinness shortly prior to driving his car and that he was observed driving on the incorrect side of the road. It was further stated that the collision the subject matter of the proceedings occurred on John Connolly's incorrect side of the road. It was also claimed that a toxicology report following post mortem established that John Connolly had an ethanol reading of 242mg% which was claimed to equate to roughly an alcohol reading three times the statutory limit. It was also claimed that immediately prior to the collision John Connolly had been observed driving on the incorrect side of the road for a distance of some fifty yards and that the collision occurred on a straight stretch of...