When commercial hosts allow an intoxicated patron to drive and, after going home, that patron gets back in his vehicle and drives in a negligent manner causing injury to an innocent third party, the commercial hosts may also be at fault. The Supreme Court of British Columbia recently confirmed this in Widdowson v. Rockwell, 2017 BCSC 385 .

Background

At approximately 5:00 PM on February 17, 2012, Brad Rockwell left his house to drive a co-worker home. After less than 100 metres, he drove onto the sidewalk and struck Stuart Widdowson. Mr. Widdowson suffered significant injuries.

Mr. Rockwell and three coworkers had spent the lunch hour drinking at the Cambie Pub, each buying rounds of drinks for the table. Mr. Rockwell had at least 5 drinks. The Court accepted that he was significantly intoxicated and his ability to drive was definitely impaired when he left the Cambie at approximately 3:00 PM. He managed to drive home safely, where, during the next 30 minutes, he had some more alcohol to drink before getting back into his vehicle and striking Mr. Widdowson.

The claim against the Cambie Pub

Mr. Rockwell’s intoxication amounted to a breach of his insurance coverage. When Mr. Widdowson sued Mr. Rockwell, the insurer claimed that the Cambie Pub had breached the duty imposed on commercial hosts to, “prevent foreseeable harm to third-party users of the highway.” This duty means that commercial hosts must not over-serve their patrons and must proactively take some steps, such as placing the patron in the charge of a sober person, putting them in a taxi, or simply taking them in charge until they are sober enough to look after themselves and not cause harm to others.

The Cambie Pub’s response

The Cambie Pub applied to dismiss the claim in a summary trial. It argued that it was not responsible for Mr. Widdowson’s injuries for two reasons:

• There was no evidence that Mr. Rockwell consumed in excess of two or two and a half beer at the Cambie Pub which, in their view, meant that he could not have been legally intoxicated; and,
• A commercial host’s responsibility to the general public for a patron’s conduct ends and it cannot be held liable after the intoxicated patron arrives home safely.

It relied upon a number of decisions, including several from the Supreme Court of Canada, that appeared to hold that the mere fact a drunk driver manages to arrive home would absolve a commercial host of any responsibility.

The evidence of Rockwell’s intoxication

Evidence in a summary trial is usually given in affidavits but the court can order that witnesses be cross-examined on those affidavits. The Cambie Pub submitted affidavits from its staff in which they claimed that they followed their “usual practice” when serving Rockwell and his friends, and that practice conformed to duties imposed of commercial hosts. After their cross-examinations, the Court concluded that the affidavits deserved “little if any weight.” The wording of the affidavits was too similar and the answers given by the staff on their cross-examinations showed that, in reality, the Cambie Pub’s day-to-day practice regarding monitoring the level of intoxication of its patrons was wholly dependent upon whether or not its customers acted like they were intoxicated, not whether or not they were legally intoxicated.

In addition, under cross-examination, one of Mr. Rockwell’s coworkers confirmed that he had no independent recollection of how much alcohol Mr. Rockwell had consumed and that one of the other men at Mr. Rockwell’s table became extremely intoxicated in the two hours they spent at the Cambie Pub. The court found the affidavit evidence filed by Mr. Rockwell’s co-workers unconvincing and that it completely ignored the amount of alcohol consumed by the others at Mr. Rockwell’s table.

Because there was no direct, credible evidence from either Mr. Rockwell’s co-workers or the staff of the Cambie Pub regarding how much Mr. Rockwell had to drink, the court relied on circumstantial evidence of Mr. Rockwell’s blood alcohol level and the evidence of the police offices who interacted with him at the scene of the accident and after his arrest. They described Mr. Rockwell as being belligerent, incoherent, and unable to stand on his own. The Court described Mr. Rockwell as “falling down drunk” when he struck Mr. Widdowson noting he had a blood alcohol content of 0.333, well over the legal limit. It was inconceivable to eh Court that between the time Rockwell left the Cambie Pub at approximately 3 p.m. and the time of the accident at 5 p.m., taking into account the hour-long drive home, he could have consumed enough alcohol to have a blood alcohol content of 0.333.

Decision of the Court

Mr. Justice Kent dismissed the Cambie Pub’s application and held that, as a commercial host, it was 25% responsible for Widdowson’s injuries. He found the arguments relied on by the Cambie Pub artificial, saying:

 [81] In my view, there is little logic to the bald proposition that a safe arrival home “breaks the chain of causation” or otherwise discharges the pub’s duty of care. Ought it really matter whether the pub-induced intoxication triggers a fall while walking home as opposed to a fall once the drunken patron has successfully crossed the threshold into his house? Does it make any sense that liability can be imposed for alcohol-caused injury to third parties before arrival at home but not if same injury occurs after leaving the home a few minutes later?

Significance of the decision

The Widdowson decision explicitly acknowledges that the mere fact a driver who became intoxicated on a commercial host’s premises arrives home safely does not absolve the commercial host from legal responsibility for any damage the drunk driver may cause to third parties should he leave home while still intoxicated, get back in his vehicle, and drive again.

This conclusion, while a significant shift in the law of commercial host liability, simply brings the commercial host’s potential liability for negligence in line with the analysis for liability in negligence required by the Supreme Court of Canada in decisions such as Athey v. Leonati, [1996] 3 S.C.R. 458 , and Clements v. Clements, 2012 SCC 32 . Commercial hosts, whenever they over-serve patrons, are liable for the ordinary and reasonable results of their negligence.

This does not mean, however, that bars are responsible for the actions of every intoxicated individual who leaves their establishment. Rather, commercial hosts need only take steps to meet the minimal standard of care the law imposes upon them:

1. Monitor how much customers consume;
2. Make reasonable assumptions of a customer’s level of intoxication based upon your monitoring; and,
3. Take steps to prevent a patron from driving when you know or ought to know that the person is likely impaired and is likely to drive.

A commercial host can easily meet the standard of care, although not without some cost. The Court in Widdowson set out nine common sense and easily implemented steps a commercial host can take protect itself from claims like the one made against the Cambie Pub:

• ensure it has adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;
• ensure there it has a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;
• ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);
• inquire if the patron is driving and identify any “designated driver” for groups of patrons;
• know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;
• display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;
• ask apparently-intoxicated patrons if they can contact anyone to assist them or if they can get them a taxi and, if necessary, offer to pay for it;
• display posters advertising free ride-home services available in the neighbourhood; and
• if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.

The decision also points out the need for commercial hosts who have to defend against a claim arising from the negligence of an intoxicated patron to muster acceptable and convincing evidence that supports a conclusion that the patron was not intoxicated when they left the commercial host’s premises.