We note that this is due to the hard work of our very own Paul Johnstone as he quietly and persistently advocates on behalf of many who make a claim to the Victims of Crime Assistance Tribunal (VOCAT).

In this case, an intoxicated patron died in a road accident after driving his motorcycle home from the hotel where he had been drinking after work.

The patron arrived at the hotel about 5.15pm and on hearing of police breathalysers in the area made an arrangement that the hotel licensee would keep the motorcycle in the hotel storeroom and hold onto its keys. When the patron was ready to go home, the licensee was to telephone the patron’s wife to pick him up.

After drinking for about three hours, the patron was ready to leave about 8.30pm.
The licensee offered to call his wife but the patron refused, insisting the licensee hand over the keys so he could ride the motorcycle home.

The licensee claimed that the patron was agitated but did not appear drunk and he repeatedly sought assurances from the patron that he was “right to ride”, with the patron responding that he was fine.

The licensee retrieved the motorcycle and the patron drove it away – with fatal consequences. There was conclusive evidence the patron’s accident was directly related to his blood alcohol reading of 0.253g per 100mls of blood.

The patron’s widow and the Motor Accidents Insurance Board (the Board) sued the hotel proprietor and its licensee for negligence, claiming they owed a duty of care to the patron which had been breached, resulting in his death.

The Supreme Court of Tasmania found that neither the proprietor nor the licensee owed a duty of care in these circumstances, but that if they did, it would have been breached by the failure of the licensee to prevent the patron from driving from the hotel.

On a successful appeal to the Full Court of the Supreme Court of Tasmania, the Court found in favour of the patron’s widow and the Board by holding that a duty of care did in fact exist and that it was breached.

A further appeal to the High Court found in favour of the proprietor and the licensee.  The decision was based on three reasons.

First, the element of causation was not established.  The patron’s widow and the Board needed to show that even if there was a duty of care that was breached, the breach had to have directly caused the patron’s death.  On these facts, there was no evidence that even if the licensee had tried to telephone the wife to take the patron home that the wife would have been successfully contacted, responded by attending and that the patron would have willingly left with her.  There were several surrounding factors that made causation difficult to prove in this case.

Second, the High Court found that there was no breach of duty by the licensee.  In complying with the agreement made, the licensee had asked the patron to let him telephone his wife but the patron refused.  The licensee could not have been reasonably expected to physically restrain the patron or refused him possession of his own property when he resisted.

Finally, the High Court decided that, while licensees do owe a general duty of care to patrons who use their premises, including duties such as maintaining safe premises and monitoring equipment within the premises, the duty should not be extended in this case.  The duty of care alleged in these circumstances was particularly narrow and required reliance on a sequence of events that could not reasonably be established.  As a result, there was no specific duty of care established on which the patron’s widow and the Board could rely in this case.

The case highlights the practical difficulties faced by hotel licensees when dealing with their patrons.

In recognition of the social role of an apology, the Victorian legislature has taken steps to offer limited protection for those who make an apology. Section 14J of the Wrongs Act provides that an apology does not constitute an admission of liability, or an admission of unprofessional conduct, carelessness, incompetence or unsatisfactory professional performance, for the death or injury of a person in a civil proceeding. However, the protection does not extend to situations where the apology admits fault (Section 14I Wrongs Act), and further the apology can be admitted with respect to a fact in issue or tending to establish a fact in issue.

The High Court examined the implications of apologetic statements in the case of Dovuro Pty Ltd v Wilkins (2003). In that case, Dovuro offered a full apology and admitted fault. The Court held that the admissions have no effect for a finding of negligence as the question of negligence is for the court to determine. They held however that those admissions of fact could go towards the question of liability at Common Law.

Some commentators have suggested that the current Victoria legislative provisions are ineffective, and that they do not serve the role for which they were intended. Some suggest that an effective apology requires an acknowledgement of fault rather than merely an expression of regret. New South Wales and the Australian Capital Territory are the only jurisdictions in Australia which offer protection for apologies that include an admission of fault.

The evening includes special guests from:
- Hutchinson Legal – Grant Hutchinson
- UBS Asset Management – James McIvor

Date: Wednesday, 28 April 2010

Venue:  Westpac Business Centre
                Level 1, 303 Maroondah Highway
                Ringwood VIC 3134

Time: 6:30pm – 8:00pm (refreshments will be served)

Please contact our office on (03) 9870 9870 if you are interested in attending this Seminar by Thursday, 22 April 2010.

Thursday, 18 February 2010 – 7:00am to 9:00am

$40 per person which includes breakfast

Karralyka Centre, Mines Rd, Ringwood East

Kristina is the creative director and founder of international fashion stationery label kikki.K Swedish Home/Office Style, with 25 retail boutiques in Australia & New Zealand, and an online store that services the world. When Kristina decided to set up a home office almost ten years ago, she couldn’t have known where that decision would take her. 

For booking or more information, please contact Hutchinson Legal on (03) 9870 9870 or BizMaroondah at www.bizmaroondah.com.au.

The team at Hutchinson Legal would like to thank you for your continued support throughout the year, for celebrating Con’s newly appointed role as a partner with us, and for your contributions to the Maroondah Hospital Emergency Department (which were raised at the Annual FUNction and via the ‘Mow the Mo 4 Maroondah Hospital’ fundraising event).

We hope that you and your family enjoy celebrating the message of Christmas. We trust that the coming year will bring you every encouragement and much joy.

The fund raising event has all funds raised by way of donations going directly to Maroondah Hospital Emergency Department

Mr Con Nottas, the newly appointed partner of Hutchinson Legal said, “Next year it is hoped that other businesses and individuals in Maroondah will join in this event as it seeks to raise funds for one of our local hospitals”.

Staff from Hutchinson Legal will be sponsored to grow and then shave their moustaches and beards.  Some may even be tempted to dye their original moustache for the occasion.  At this stage staff from Quattro Hair Fashion in Eastland will donate their time and ensure that the shaving (and the dying) is performed professionally and appropriately.

‘We are always keen to promote good local causes’ said Martin Reilly of Hutchinson Legal.  ‘But in any event, many of our clients making applications to the Victims of Crime Tribunal use the valuable services of the Emergency Department so this is a way we can contribute to their on-going care’.

If you would like to participate in the campaign or be a sponsor please call Tristan at Hutchinson Legal on 9870 9870.  All donations will go to the hospital and are tax deductible.

At Hutchinson Legal we offer the opportunity to our clients when drafting their Wills whether they wish to be cremated or buried.  Often the response is: ‘I am not sure’ or ‘I don’t care’.  Some people, however, may now be interested in the environmental impact of such a choice.

While cremation has a decided advantage over burial in that land is scarce and cemetery lots expensive, cremation has been criticized by some natural burial advocates for its high energy use, production of greenhouse gas emissions and generation of airborne pollutants.

A report by the consultancy company GHD compared the greenhouse gas emissions from cremation and burial (GHD, 2007).  The study estimated that greenhouse gas emissions from cremation were 0.16 tonnes (160kg) of CO2 per person.  GHD estimated that burial produces fewer emissions, at 0.039 tonnes (39kg) of CO2 per person at the time of internment.  For comparative purposes, the average car produces about 4.5 tonnes (4500kg) of greenhouse gases every year (Commonwealth of Australia) which means that in South Australia, where the report was commissioned, the burial of people for the state produced the same greenhouse gas emissions as running 38 cars for a year, and cremation produced the equivalent emissions of running about 267 cars for a year.

The report also concluded, however, that the maintenance of burial sites in conventional cemeteries resulted in 10% greater environmental footprint for burial than for cremation due to the fossil fuels in mowing lawns and maintaining gardens.

Be that as it may, some advocates are considering the environmental impact of having a natural burial – that is being put in the ground without a coffin with the body wrapped in a shroud by the base of a tree so that the body can decompose naturally into the soil.  The government of South Australia it seems, through its Greenhouse Strategy ‘Tackling Climate Change – South Australia’s Greenhouse Strategy 2007-2010′ (Government of South Australia, 2007), and some leading Members of Parliament, is keen to set a framework for the changes needed to address the issues of climate change which includes natural burial.

Be that as it may, careful consideration of the environmental impact of burial or cremation may now help clients in making more decisive choices.