Pubs' duty of care to punters

The recent trial in Ireland of two Tipperary barmen who were accused of the manslaughter of a young English drinker has raised once again the whole issue of the duty of care that a pub may owe to its customers.

Contrary to most of the newspaper and TV reports at the beginning of the trial, there is no such thing in Ireland as an 'Alcohol Liability Act'. The barmen (not the hotel, incidentally) were charged with manslaughter on the grounds of what the prosecution described as their "gross negligence" in serving or allowing the service of a pint glass containing eight shots as part of the young man's 26th birthday celebrations. He later passed out and was subsequently found dead where he had been laid, even though he was checked at 1am.

The judge, while expressing great sympathy with the family of the deceased, nevertheless directed that the manslaughter charge should not even be put to the jury.

This may be puzzling to some people and there have been immediate calls for the law in Ireland to be changed, but in my view it was an entirely correct decision. At the time of the first reports I was reminded of a very similar case that I reported on in this newspaper way back in 1984, and as far as I am aware that earlier case is still good law in England and Wales on the duty of care issue.

While he agreed with the prosecution that they had satisfied the test of three elements of the charge — that the accused men had a duty of care to the deceased, that they had in fact breached that duty of care and that their negligence over the situation amounted to "gross negligence" in law — the judge said that there was a fourth element: that the negligence had led to, or was the cause of, the customer's death.

Personal decision​

It was exactly this point that the 1984 case also covered. It is all to do with what intervenes in such situations. The courts have always attached great importance to the question of individual responsibility, particularly with regard to consumption of large quantities of alcohol. The evidence showed that the young man had taken a decision when confronted with the glass of alcohol and he decided to drink it. This was the intervening fact that broke the 'chain of causation' between the negligence and the tragic death.

In the earlier case, the two young men had got extremely drunk in the hotel bar and had been refused service as a result. They then went outside, climbed over a fence with a warning sign on it and fell over a cliff to their deaths. It was the decision to scale the fence, the judge said, that broke the chain in that case, and the hotel (not in that instance the barmaid) could not be found responsible for their deaths.

Anyone who works in the trade will tell you how difficult it is to make a judgment about continuing to serve, especially with a celebration of this kind, or when the actual focus of the party tells you he wants to go ahead and 'prove' his ability.

It makes you the killjoy, could lead to a very bad atmosphere and puts tremendous pressure on you. But clearly, when tragedy strikes, the spotlight then falls on the pub and its actions.

Although this case was not heard under English law, I have no doubt that a judge here would have reached a very similar conclusion on the facts — even assuming that a manslaughter charge had been brought in the first place.

But it is yet another lesson for operators to address such issues in their instructions to staff, and so avoid their own liability in such matters.