Can the Civil Law implement Alcohol Policy?

By Jonathan Goodliffe

People often get hurt or die because of what happens when someone has too much to drink. In what circumstances should compensation be payable? It will usually not be too difficult for the victim to sue the drinker and recover compensation if the drinker is insured. But should the victim, who may be the drinker himself, if he gets hurt through his own drinking, or his widow if he dies, be able to sue the publican or whoever organised the event at which the drinking took place?

Recent English cases

These questions have come up in a number of recent cases in the courts. The first concerned a Mr. Barrett who was an airman stationed at an airbase in Norway. He got drunk and unconscious at a party in 1988 at the base. He was taken to a stretcher and put in the recovery position, but he died by choking on his own vomit. The Court of Appeal held the Ministry of Defence (“MOD”) liable.

This was not because MOD were to blame in law for what happened at the party itself. The Court of Appeal (unlike the judge at the trial) considered that, although the Navy may not have enforced its own regulations, it was Mr. Barrett’s responsibility not to get drunk. However, once he had become unconscious, responsibility had been accepted for looking after him and those in charge had failed to exercise enough care. But the compensation payable to his widow and his estate, assessed at £160,000, was reduced by two thirds because of his “lack of self-control in his own interest”. A subsequent application to the European Commission of Human Rights claiming that the Ministry had infringed Mr. Barrett’s right to life failed.

In another case against the MOD, a Mr. Jebson, a soldier, climbed on the back of an army lorry when he was in a state of drunken high spirits and fell off, injuring himself. This was after a night out organised by the company commander. The judge at the trial dismissed the claim but the Court of Appeal considered that the MOD had accepted some responsibility, having organised the outing and the transport. There should have been adequate supervision when in fact the only sober person was the driver who could not see the back of the lorry. However the damages payable (which at the time of the judgment had not been assessed) were to be reduced by 75% because of Mr. Jebson’s “contributory negligence”.

In the last English case, in 1999, Airtours had provided a package holiday to Tunisia for Mr. Brannan. It put on a party with free alcohol in a crowded environment, with people sitting at tables. Mr. Brannan, who was “merry but not drunk” got hurt when, to get away from the party, he climbed up onto one of the tables and hurt his face on a fan. There had been a previous accident involving the fan and Airtours had warned people about walking on the tables, but they were held liable anyway. They had created the dangerous setting, put people into a party mood and given only one warning. However, again the compensation of £5,000 payable to Mr. Brannan was reduced by 50% because of his contributory negligence.

The North American Experience

In the USA and Canada claims of this kind are more common. The operators of a bar might be sued by someone who has too much to drink there and gets hurt afterwards. This may be either on the basis that he should not have been served or, because, having had too much to drink, the owner or operator should have tried to stop him driving off. Claims of this kind have also been made against people who organise private social events.

In North America people who operate bars may be sued by the victims of road accidents or aggressive behaviour involving intoxicated people who were served at the bar. Such a claim would be much more difficult to make in England. In road traffic cases there would not be much point in suing the publican, because compensation would usually be recoverable from the insurer of the drunken driver or from the Motor Insurers’ Bureau and the injured person would not be compensated twice over. Similar considerations would apply to victims of alcohol related violence. There would be little point in their suing the pub if they could recover from the Criminal Injuries Compensation Board. On the other hand an incident in a pub, leading to one customer causing accidental injury to another, could lead possibly to a viable claim against the publican.

There are other reasons why claims of this kind are more common in the USA. Each state has its own civil procedure, but in general compensation is assessed by a jury rather than a judge. It may to some extent reflect the jury’s outrage at the defendant’s behaviour as well as what is necessary to compensate the victim for his loss. The compensation is often greater than it would be in the UK and thus more likely to be worth pursuing. Secondly, US lawyers may be more willing to take on very difficult claims because they are allowed to agree with their clients that they should be paid a proportion of the compensation if they win (“contingency fees”). Thirdly, the losing party in personal injury claims does not, as in the UK, have to pay the successful party’s lawyers’ fees. Fourthly the approach of the courts towards civil claims in this as in all contexts, reflects attitudes in society as a whole. In the USA people are perhaps more conscious, and less tolerant of, alcohol related problems than in Britain. This is reflected in, for instance, the relative extent of research in the two countries on legal issues relating to substance abuse.

All this comes at a cost, however. The US system is often criticised for encouraging speculative and morally unjustifiable claims and for making it too easy for defendants to be blackmailed into paying up on claims which would fail if they went to trial. And when cases do go to trial perverse or “runaway” jury verdicts are sometimes returned.

Effectiveness of the civil law

Should English law be moving in the same direction as the US and Canadian courts? The civil law of negligence and compensation is rarely used in this country as a primary means of enforcing social policy. Criminal law or regulatory sanctions more often fill that purpose. In any event compensation awards are sometimes so low that their deterrent effect must be minimal.

In many ways, however, the civil law, properly used, can be a more effective and economical way of enforcing legal rules than the criminal law. The case against the rule-breaker only has to be proved on a “balance of probabilities” (or in the USA “preponderance of evidence”) rather than “beyond reasonable doubt”. Most of the expense is not borne by the state, since public authorities are not involved in enforcing the law and legal aid in England for negligence claims is rarely granted. In an era of “priority crimes” which for political or other reasons must absorb most of the resources of the police, a large range of other offences may be left unenforced with the risk that the rules in question may be ignored or brought into disrepute.

Scientific research establishes that modifying the drink context can reduce alcohol related harm. This can take the form of serving regulations and providing training for handling problem behaviour in pubs (see, for instance, the World Health Organisation Report Alcohol: No Ordinary Commodity - Research and Public Policy, Babor et al. 2003). In Ontario, Canada, the emergence of civil liability for the conduct of intoxicated patrons contributed to a movement towards the training of managers and servers in licensed establishments in the responsible service of alcohol. Under the subsequent Liquor License Act, all persons who serve alcohol in licensed establishments in Ontario were required to attend a server training course (Eric Single: The interaction between policy and research in the implementation of server training. Addiction: [January (Supplement)], 1993, p105S-113S).

In Texas, USA the results of a study revealed 6.5 percent and 5.3 percent declines in injurious traffic crashes following the filing of two major liability suits in 1983 and 1984 respectively. It appears that server liability is regarded in that state as one of several important public policy tools in efforts to achieve health objectives regarding reduced injury morbidity and mortality (Alexander C Wagenaar and Harold D Holder: Effects of alcoholic beverage server liability on traffic crash injuries. Alcoholism: Clinical and Experimental Research: 15, [6], 1991, p942-947).

Civil law as a policy tool

In modern society anti-social behaviour arising from or contributed to by heavy drinking is often tolerated or ignored even when the potential consequences can be severe either to the drinker, his family, other road users, colleagues at work, clients and customers, the resources of the police, the National Health Service and the insurance industry or taxpayers generally. The Government’s long promised alcohol policy may seek to achieve some change in these attitudes. The civil law can be one of the means to that end.

So returning to the case of Mr. Barrett, was it right that the compensation arising from his death should be reduced by two thirds? In moral terms it may be right to regard him as bearing the brunt of the responsibility for his own death. But Mr. Barrett’s widow and children (if he had any) were surely not to blame. They too had to suffer the consequences. That was not a relevant consideration in law but perhaps it should be. In any event the law does not have to follow slavishly traditional concepts of legal responsibility when there is a broader social purpose, accepted by Parliament, to be achieved. This purpose may be to encourage people who serve alcohol to behave responsibly, by making the consequences for them, if they fail to do so, as painful as possible.

Should the law of negligence adhere to the puristic view that the courts should only compensate people for losses they have suffered? Personal injury awards are calculated in accordance with a tariff which was raised by the Court of Appeal in 2000 but might need to go up again if the civil law is to be really effective as a policy tool. Should there be a move some way towards the US model where the prospect of being sued is scientifically proved to influence people’s behaviour?

For many people the answers to these questions may depend at least partly on the success or otherwise of the Licensing Act 2003. Under Part 7 of the Act there are various offences such as “allowing disorderly conduct on licensed premises” and “sale of alcohol to a person who is drunk”. Under Part 6 persons applying for licences must hold licensing qualifications. However the Act makes no use of the civil law as a tool for reducing alcohol related harm. Will it achieve the same change in social attitudes as did the introduction of the breathalyser under the Road Safety Act 1967?

It is perhaps possible for some lessons to be learned from the US experience whilst guarding against its worst excesses.

The author, a lawyer who has written extensively on alcohol issues, is grateful to Richard Longaker, defence litigation and trial attorney of Los Angeles, California, for his help in the preparation of this article