McGILL LAW JOURNAL
Volume 20
Montreal
1974
Number 4
The Intoxicated Patron:
A Re-appraisal of the Duty of Care
Harry Silberberg *
“First Principles”
Dean Roscoe Pound once suggested that judicial individualization
of basic principles through choice of a rule is most noticeable in the
law of torts.’ The recent decision of the Supreme Court of Canada
in Jordan House Ltd. v. Menow and Honsberger2 confirms this
statement. The leading judgment of Laskin,J. (as he then was), in
which Martland and Spence,JJ. concurred, begins with the words:
“This is a case of first instance”. In other words, there was no
leading case directly in point. Therefore, the Court was at large and
had to rely on first principles to reach its decision. It is this fact
which makes the case both remarkable and important. By the same
token, attempts to fit the various judgments into a framework of
orthodox rules, developed and derived from cases dealing with
entirely different fact situations, can only be helpful to a limited
extent. In cases of first impression, basic value judgments are
applied to entirely new situations. The unprecedented application
must ultimately either be accepted or rejected. Such cases, there-
fore, leave little room for argument in terms of syllogistic con-
sistency or inconsistency.
Accordingly, it is proposed to examine in the first place the basis
on which the Court has related the facts of Jordan House to the four
traditional elements of liability in negligence, that is to say: (1) the
duty situation; (2) foreseeability of harm or damage, including the
kind of harm or damage which ought to be foreseen; (3) the care-
lessness of the person on whom the duty of care has been imposed;
* Reader in Law, University ‘of Rhodesia.
I An Introduction to the Philosophy of Law (1954), 68.
2 (1973), 38 D.L.R. (3d) 105.
3 Ibid., 106.
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and (4) the causal connection between the carelessness and the
harm or damage alleged to have resulted from it0 In the second
place, the effect of the judgments on the law will be discussed with
particular reference to their possible applicability to allied situa-
tions. Their wider implications, such as their bearing on the move-
ment towards no-fault liability in the law of tort, will also be
considered. Such an analysis must take into account throughout the
Court’s value judgment underlying the decision. Firstly, however, a
summary of the facts and of the tenor of the judgments is required.
Findings of Fact
The appellant company5 owned a hotel situated on a much tra-
velled highway between Hamilton and Niagara Falls. The first re-
spondent, Menow, was a frequent patron of the hotel’s beverage room
and bar facilities. He had a tendency to drink to excess and to act
recklessly when he became intoxicated, though normally he was quiet
and well behaved. The hotel management and its employees knew of
his propensities and instructions had been issued not to serve him
with intoxicating drinks unless he was accompanied by a responsible
person. The day on which the events giving rise to this case occurred,
Menow had come to the hotel originally in the company of his
employer and foreman, who had left after a short while. He was
alone in the hotel bar when the manager arrived there at about
7 p.m. At that time Menow had been in the bar for approximately
two hours but was still in a sober condition. He was served with
beer from time to time over the next three hours, until the manager
realized that Menow was drinking to excess “and that he had become
intoxicated, the hotel having sold beer to Menow past the point of
visible or apparent intoxication”.6
Shortly after 10 p.m., he began making a nuisance of himself
by wandering around to other tables. He was then turned out of
the hotel, although the manager knew that he was “unable to take
care of himself by reason of his intoxication and that he would
have to go home, probably by foot, by way of a main highway”.7
The night was dark and rainy and Menow wore dark clothes not
readily visible to motorists. Once outside the hotel, Menow was
given, fortuitously, a lift by a passing motorist for part of his
way home. However, after he had been left off he walked along
4 See e.g. Clerk and Lindsell on Torts 13th ed. (1969), para. 973.
5 Hereafter referred to as “the hotel” or as “Jordan House”.
6 Supra, f.n.2, 107.
7 Ibid.
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RE-APPRAISAL OF THE DUTY OF CARE
the highway for some distance. He was staggering near the centre
of the road when he was struck by a car driven by Honsberger,
the second respondent. At that point, just under half an hour after
he had been ejected from the hotel, Menow was no longer on his
direct way home, but had gone further along the highway than
necessary, looking for a friend. On these facts, the trial court held
that the accident and the injuries suffered by Menow were caused
by the combined negligence of the manager of Jordan House,
Honsberger and Menow himself, and apportioned the blame equally
among them. Menow and Honsberger accepted the judgment, ex-
cept that Honsberger objected to the apportionment and claimed
an indemnity from the hotel, but Jordan House appealed.
The Judgment
In the trial court I Haines,J. held that Jordan House, its manager
and other employees owed and were in breach of a common law
duty of care to Menow, namely (a) “not to serve him with intoxi-
cating drink when he was visibly intoxicated”9 and further (b)
“to take reasonable precautions to ensure that his safety was not
endangered” 10 as a result of his intoxication. He derived the basis
for this common law duty from certain statutory provisions which
laid down in peremptory terms that no liquor shall be. sold to
any person who is apparently in an intoxicated condition and that
inter alia the holder of a liquor licence must not tolerate drunk-
enness or any disorderly conduct on the premises in respect of
which such a licence has been issued.” In his view these provi-
sions “were enacted not only to protect society generally, but also
to provide some safeguard for persons who might become irre-
sponsible and place themselves in a position of personal danger”,’2
so that “it may be inferred that the legislators intended to provide
tort liability”‘ 3 for their breach in appropriate cases in addition to
making their contravention a criminal offence.’4 Finally, Haines,J.
8 (1969), 7 D.L.R. (3d) 494.
9 Ibid., 500.
10 Ibid., 503.
“Liquor Licence Act, R.S.O. 1960, c.218, s.53(3) and 53(4); Liquor Control
Act, R.S.O. 1960, c,217, s.81.
12Supra, fn.8, 499.
13 Ibid., 500.
14 These expressions may give the impression that HainesT. derived the
basis for the hotel’s liability directly from the statutory provisions. Read
against the background of the judgment as a whole it does not appear that
he intended to go so far. However, any doubts about the scope of those
provisions have been resolved by Laskin,J. See infra, text following f.n.17.
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emphasized that it was when the hotel’s employees “undertook
affirmative action to remove the plaintiff [Menow] from the pre-
mises” that they, acting for the hotel, “assumed a duty of care
to take reasonable precautions to ensure that his safety was not
endangered as a result of their actions” ,5 even though at that
stage they were justified and possibly even obliged to eject him
from the beverage room, if not from the hotel itself.’ 6
The Ontario Court of Appeal confirmed the judgment of Haines,
J. “on the simple ground that so far as the hotel is concerned,
there was a breach of the common law duty of care owed to the
plaintiff [Menow] in the circumstances of this case”.
In the Supreme Court,’ Laskin,J. accepted the proposition that
the statutory provisions on which Haines,J. had relied in the trial
court to impose a duty of care on the hotel were relevant, although
he qualified his acceptance of the principle to some extent. He
regarded them
… as crystallizing a relevant fact situation which, because of its authori-
tative source, the Court was entitled to consider in determining, on com-
mon law principles, whether a duty of care should be raised in favour of
Menow against the hotel.19
However, he emphasized that this should not be taken to mean
that the mere breach of the statutory duty and the fact that Menow
had suffered injury were enough to attach civil liability to Jordan
House. Neither did Laskin,J. attach special importance
to the
“affirmative action” of the hotel’s staff in removing Menow from
the bar premises. In his view such action could only be considered
“as wrapped up in the duty of care” which rests on the operator
of a beverage room towards an intoxicated patron in such circum-
stances as existed in this case. Accordingly, Laskin,J. proceeded
from the general premise that “[t]he common law assesses liability
for negligence on the basis of breach of a duty of care arising
from a foreseeable and unreasonable risk of harm to one person
created by the act or omission of another”.0 However, in so far
as such “liability is predicated upon fault, the guiding principle
assumes a nexus or relationship between the injured person and
the injuring person which makes it reasonable to conclude that
the latter owes a duty to the former not to expose him to an
15 Supra, f.n.8, 503.
‘0 Liquor Licence Act, supra, f.n.11, s.53(6).
17 (1970), 14 D.L.R. (3d) 545, 546.
18 Supra, f.n.2.
19 Ibid., 110.
20 Ibid.
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RE-APPRAISAL OF THE DUTY OF CARE
unreasonable risk of harm”.2’ In arriving at the decision as to
whether the potential victim is being exposed to an unreasonable
risk of harm, the probability or remoteness and the gravity of
injury must be taken into account and related “to the burden
that would be imposed upon the prospective defendant in taking
avoiding measures”.2 2 Applying these principles to the facts found
by the trial court, the learned judge concluded that the hotel’s
liability for negligence vis-&-vis Menow had been established. Rit-
chie,J. arrived at the same result, albeit along a slightly different
route.
The Duty Situation
Before Jordan House could be held liable to Menow for the
injuries he had suffered, or indeed before such liability could
even be contemplated, it was necessary to establish that the former
owed a duty of care to the latter. According to Haines,J. such a
duty had its roots in the statutory provisions which prohibit
operators of licensed premises from supplying liquor to any per-
son who is apparently in an intoxicated condition, and which
forbid operators to “permit or suffer” any drunkenness or quarrel-
some, disorderly conduct on such premises23 Laskinj. emphasized
the special invitor-invitee relationship which existed between Jor-
dan House and Menow and which placed the hotel in a different
position from “persons in general” 24 who, if they saw Menow in
an intoxicated condition and unable to control his steps, “would
not, by reason of that fact alone, come under any legal duty to
steer him to safety, although it might be expected that good
samaritan impulses would move them to offer some help”. 2 But,
Laskin,J. also stressed that the hotel “was aware, through its
employees, of his [Menow’s]
intoxicated condition, a condition
which.., it fed in violation of applicable liquor licence and liquor
control legislation”.2 6 However, since he had already made it clear
that a violation of this legislation per se would not attach civil
liability to the hotel, but that such liability had its roots in the
invitor-invitee relationship which had been established with Menow,
one must enquire into the reasons for reference to the specific
statutory provisions.
21 Ibid.
22 Ibid., 111.
23Liquor Licence Act, supra, f.n.11, s.53(4).
24 Supra, fm.2, 111.
2 Ibid.
26 Ibid.
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It is suggested that LaskinJ. referred to the provisions of the
Liquor Acts because they laid down a standard of conduct appli-
cable to the specific invitor-invitee relationship between the oper-
ator of a beverage room and his patrons. In other words, the duty
of care which he held to exist as a result of such a relationship
is not necessarily attached to other invitor-invitee relationships in
which one party supplies another with liquor. Thus it may, or
may not, be imposed upon the committee or licensee of a club,
or on the host at an official banquet or at a private party. The
obvious difference between the latter and a tavern-owner is that
the tavern-owner expects to make a profit from the supply of
liquor to his patrons, which is not true of a club or the host at
a banquet or a private party. Nevertheless, the grant of a liquor
licence even for a banquet is subject to the same statutory pro-
visions to which Laskin,J. referred, so it may not be sufficient
to seek the reason for the imposition of liability on the hotel in
Jordan House in the field of “business enterprise liability”. On
the other hand, it is probable that the host of a private party
could be expected to ensure that his guests do not suffer harm
when they leave him in a state of intoxication, or to see to it
that they do not drink too much in the first place on the basis of
“ordinary humanitarian” or similar grounds?27 Certainly, Ritchie,T.
did not appear to attach special importance to the tavern-owner’s
profit motive when he gave his reasons for the dismissal of the
appeal and said:
For my part.., the circumstances giving rise to the appellant’s liability
were that the inn keeper and his staff, who were well aware of the
respondent’s propensity for irresponsible behaviour under the influence
of drink, assisted or at least permitted him to consume a quantity of
beer which they should have known might well result in his being incapa-
ble of taking care of himself when exposed to the hazards of traffic.
Their knowledge of the respondent’s somewhat
limited capacity, for
consuming alcoholic stimulants without becoming befuddled … seized
them with a duty to be careful not to serve him with repeated drinks
after the effects of what he had already consumed should have been
obvious.28
27 Ofcourse, there may always be special reasons for holding even a private
host liable for harm suffered or caused to others by an intoxicated guest.
See e.g. S. v. Els, [1972] 4 S.A. 696, where a private host “laced” his guest’s
drink, knowing that the guest had taken sedatives. A South African court
acquitted the guest of driving under the influence of liquor when incapable
of having proper control of his car. It is suggested that the host would be
civilly liable if the guest had been involved in an accident and caused damage
either to himself or to a third person.
28Supra, f.n2, 105.
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RE-APPRAISAL OF THE DUTY OF CARE
Nor were Haines,J. and Laskin,J. prepared to go so far as to
impose “a duty on every tavern-owner to act as watch dog for all
patrons who enter his place of business and drink to excess”*9
The crux of the matter in all negligence cases is, therefore, the
existence of a duty of care to avoid acts and omissions which
are likely to injure one’s neighbour-in-law: only if that duty exists
can the question of whether or not it has been breached arise at
all. In the majority of cases, however, the category of negligence,
i.e. the existence of the duty, has already been established. Con-
sequently, the problem whether a duty of care exists is, at most,
considered only in passing while the gravamen of the discussion
will fall almost immediately on the questions of foreseeability,
the degree of care required from the defendant, and causation.
It is different, of course, in cases of first impression in which
the existence of a new duty must first be established. Here the
difficulty is to find in the common law authorities
… statements of general application defining
the relations between
parties that give rise to the duty. The courts are concerned with the actual
relationships which come before them in actual litigation, and it is
sufficient to say whether the duty exists in those circumstances. 0
The result is, it is here submitted, that although “negligence” is
nowadays regarded as a single and separate tort –
unified by
the criterion of foreseeability of harm –
it is in truth still only
a common denominator for a variety of heterogenous situations in
which one party is charged with a duty to avoid acts and omis-
sions which are likely to cause harm to another party, but there
is still no general criterion, no “measure of decision”, which de-
termines the circumstances in which such a duty of care will be
imposed. This means that even when a duty of care has been
recognized to exist between two or more parties who stand in
a particular relationship to each other, the extent of the duty is
rarely fully defined. As a result it is, of course, often difficult to
distinguish between the existence of a duty and the scope of that
duty. Indeed, the existence of the duty appears to be invariably
co-extensive with its scope.
Another result of the absence of a unifying factor enabling
lawyers to determine a priori whether or not a duty of care exists
is that the law of negligence is today in a state similar to that
of the law of torts in the days when a remedy depended on finding
the proper writ (such as trespass, assumpsit and the like) which
29 Ibid., 113; supra, f.n.8, 503.
30 Per Lord Atkin in Donoghue v. Stevenson, [1932] A.C. 562, 579.
McGILL LAW JOURNAL
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the common law courts would recognize. In other words, even
now liability in negligence will depend on whether the plaintiff
can “find a pigeonhole in which to fit the harm he has suffered
before the courts will afford a remedy”.3 ‘ For instance, in Candler
v. Crane, Christmas & Co. 32 it was held that no liability in tort
would be imposed for economic injury caused by negligent false
statements, i.e. there was no “pigeonhole” from which a remedy
could be taken to assist the plaintiff. Some thirteen years later,
in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.,33 it was
found that such a pigeonhole existed after all, although in that
particular case the remedy contained in it was not available to
the plaintiff. But strictly speaking, the label which was affixed
to that pigeonhole after it had been discovered was not exact.
Only the lrinciple that negligent false statements might found
an action in tort had been enunciated; yet the exact remedy
existed, at least for the time being, for persons who relied on the
information given by bankers about the financial standing of their
clients, provided that the bankers had not covered themselves by
an exemption clause.
The question naturally arising from Hedley Byrne is how one
determines whether or not a “special relationship” exists. While
it may be accepted without much difficulty that no liability should
be imposed on the solicitor giving casual but wrong advice during
a railway journey because there is no special relationship between
him and his fellow travellers, why is it still doubtful whether the
solicitor who negligently draws a will which deprives the intended
beneficiary of the legacy which he should have received is liable
to the legatee? No doubt, “[in this state of uncertainty a helpful
guide can be found in the famous dissenting judgment of Denning,
L.J. in Candler” which recognizes that “at bottom the problem
is one of exclusion: negligence in word cannot in all respects be
treated like negligence in act, for that would open up too wide
an arc of liability”. 4 But is this really an answer or does it not
rather underline the problem which is at the very root of all
negligence cases? Certainly, it epitomizes the problem of exclusion
which the Jordan House case has created in another field of negli-
gence liability. Already Laskin,J. and Haines,I. have indicated that
there is no general duty of care imposed on tavern-owners towards
31Fleming, The Law of Torts 4th ed. (1971), 6.
32 [1951] 2 K.B. 164, [1951] 1 All E.R. 426.
33 [1964] A.C. 465.
34Salmond on the Law of Torts 16th ed. (1973), 209.
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RE-APPRAISAL OF THE DUTY OF CARE
their intoxicated patrons. Surely, a distinction must be made be-
tween operators of beverage rooms who supply liquor as a matter
of business expecting to make a profit from it, and others who
have no profit motive but who may nevertheless be expected to
live up to the standard which the liquor laws lay down. Therefore,
it would seem that the statutory provisions alone cannot suffice
for imposition of liability on innkeepers in particular.
Nor is there a definite statement or even a clear indication
in any of the judgments that liability was imposed on the hotel
in terms of “business enterprise liability”, or that the hotel might
be in a better position to insure against the risk of an intoxicated
client suffering injury on his way home. Haines,J., it would seem,
felt that the imposition of a duty of care vis-&-vis an intoxicated
patron solely by reference to the standard of conduct established
by the legislator might be regarded as insufficient. For this reason,
he emphasized that the manager and staff of the hotel had taken
affirmative action to eject Menow from the beverage room, ex-
posing him to the dangers of the highway and compelling him to
make his way home in an advanced state of intoxication. Accord-
ingly he found that it was at this stage, if not before, that the
hotel was seized with a duty of care toward him. Ritchie,J., how-
ever, had no doubt that this duty originated at a far earlier stage:
when the hotel’s employees “assisted or at least permitted him
to consume a quantity of beer which they should have known
might well result in his being incapable of taking care of himself
when exposed to the hazards of traffic” 5 Since the imposition
of this duty was based specifically on the fact that the manager
of Jordan House and his staff “were well aware of the respond-
ent’s propensity for irresponsible behaviour under the influence of
drink”, 3 6 it seems likely that he shared the view expressed in the
other two judgments that a barkeeper cannot, as a general rule,
be held responsible if his patrons drink liquor to excess. Never-
theless, Ritchie,J. appears to go further than Haines,J. and semble
LaskinI. in so far as his judgment indicates that he is prepared
to impose a duty on every tavern-owner to act as a watch dog
for every patron whose inability to hold his liquor and tendency
to drink to excess is well known to him. The tavern-owner must
not only ensure that such a patron does not suffer harm, but
must also take precautions that he receives no further supplies
of liquor as he is approaching, yet before he has actually reached,
35 Supra, f.n2, 105.
36 Ibid.
McGILL LAW JOURNAL
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a stage of intoxication at which it becomes likely that the patron
is unable to appreciate the effect of even one more drink U
In contrast to the judgments of Ritchie,J. and Haines,J., the
leading judgment of Laskin,J. indicates that the learned judge
was reluctant to single out any fact or aspect of the case before
him as being of particular importance for the decision of the issue,
which he phrased as follows:
… whether the operator of a hotel may be charged with a duty of care
to a patron of the hotel beverage room who becomes intoxicated there, a
duty to take reasonable care to safeguard him from the likely risk of
personal injury if he is turned out of the hotel to make his way alone.38
On the one hand, he deprecated the importance of Menow’s eject-
ment by the hotel staff (which Haines,J. had stressed) because
[t]he affirmative action of removal did not in itself result in any injury
to the plaintiff, as it might have been the case if excessive force had been
used against him (which is not suggested in the present case) nor was it
followed by any breach of duty raised by and resulting from the af-
firmative action per se …
On the other hand, he conceded that a “great deal turns on the
knowledge of the operator (or his employees) of the patron and
his condition where the issue is liability in negligence for injuries
suffered by the patron”.40 But it is obvious (as it must have been
to Ritchie,. when he decided to deliver a separate judgment) that
he did not attach as much significance to it as did the latter. In
fact, one is almost left with the impression that Laskin,J. left
the scope of the duty which rests upon the operator of a beverage
room deliberately vague so as not to hamper the courts in their
task of developing it as and when future cases arise. He expressed
himself in these terms:
37Admittedly, Ritchie,f. also said later that the knowledge of the innkeeper
and his staff of Menow’s limited capacity to consume liquor without becoming
befuddled or obstreperous seized them with a duty to be careful not to serve
him with drinks after the effects of what he had already consumed should
have become obvious. However, at the risk of being accused of reading more
into a judgment than it actually says, it is submitted that this passage must
be read within its context and thus be taken to mean that where an innkeeper
and his staff have special knowledge of a patron’s propensities and weak-
nesses, they are also under a special duty to watch out for “danger signs”
and to refuse to serve him earlier than they would refuse a patron who is not
known to them.
38 Laskin,J.’s own definition of the “principal issue” in the Jordan House
case: supra, f.n.2, 106.
39 Ibid., 108.
40 Ibid., 113.
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RE-APPRAISAL OF THE DUTY OF CARE
Given the relationship between Menow and the hotel, the hotel operator’s
knowledge of Menow’s propensity to drink and his instruction to his
employees not to serve him unless he was accompanied by a responsible
person, the fact that Menow was served not only in breach of this instruc-
tion but as well in breach of statutory injunctions against serving a patron
who was apparently in an intoxicated condition, and the fact that the
hotel operator was aware that Menow was intoxicated, the proper con-
clusion is that the hotel came under a duty to Menow to see that he got
home safely by taking him under its charge or putting him under the
charge of a responsible person, or to see that he was not turned out alone
until he was in a reasonably fit condition to look after himself.41
While the difference in approach between the judgments did not
affect the result in Jordan House, it is nevertheless significant.
Not only have Haines,I. and RitchieJ. circumscribed the scope of
the duty situation with greater precision than Laskin,I., but they
also hold somewhat different views of the social conduct which
is required from a tavern-owner in general4 2
The Foreseeability of Injury and Harm
It is generally accepted that liability for negligence can be
imposed only if the injury or harm resulting from it was fore-
seeable by the alleged tortfeasor, who is assumed to be a “reason-
able man”.4 3 But it is equally accepted that foreseeability by itself
is not necessarily sufficient to found such liability. When the law
“denies its aid to casualties of negligence despite the foreseeability
of harm”,
it is sometimes said that the person whose act or
omission has caused injury to another was under no duty toward
his victim to abstain from acting as he did, or if he chose not to
act, to prevent the injury or harm. In the absence of a duty, the
act or omission does not entail liability. Although it is axiomatic
that, since Lord Atkin’s celebrated neighbour principle 5 the exist-
ence or non-existence of a duty of care must be expressed in terms
of foresight and foreseeability, this does not mean that an act
which is unlawful becomes lawful and justified merely because
the harm or injury resulting from it was not foreseeable. That
this must be so becomes clear if one considers a negligent act
which results in harm which was partially foreseeable and par-
41 Ibid., 112.
42See also infra, the Court’s Value Judgment.
4 3 E.g. Fleming, supra, f.n.31, 135, defines negligence as “failure to take care
against unreasonable risk of foreseeable injury”.
44Ibid., 136. See also Linden, Canadian Negligence Law (1972), 210: “The fact
is that some foreseeable risks are not within the scope of duty owed, while
some unforeseeable risks are considered within the duty.”
45 Donoghue v. Stevenson, [1932] A.C. 562, 580.
McGILL LAW JOURNAL
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tially not foreseeable. It can hardly be said that in such a case
the act was partly lawful and partly unlawful.46 It follows that
lack of foreseeability does not justify the infliction of harm, but
only absolves the person who has caused it from liability for it.
Conversely, neither the deliberate nor negligent infliction of injury
can, of course, convert an act or omission which is lawful per se
into an unlawful act or omission merely because the -injury was
foreseeable.47
In the Jordan House case the Court had no difficulty in
finding that the conduct of the hotel, acting through its man-
ager and other employees, was unlawful and that the injuries
which Menow eventually sustained when he was hit by Honsber-
ger’s car were foreseeable by a “reasonable man”. However, it
appears that the learned judges differed about the stage at which
the injury became foreseeable. In retrospect it seems clear that
the hotel had a duty towards Menow from the moment at which
his companions departed until he was safely at home, or in the
company of another person who would look after him. In short,
the hotel’s duty was to see to it that he suffered no harm by
reason of the fact that he was incapable of looking after himself
because he had consumed more liquor than he could carry in
the hotel’s beverage room. It was on this total fact situation that
Laskin,I. founded the hotel’s liability and accordingly he declined
to attach specific significance to any particular fact or stage. Rit-
chieJ., on the other hand, apparently thought that the likelihood
of injury became foreseeable as soon as Menow had consumed
several tankards of beer and that from then onward the manager
and staff were bound to keep him under observation. Haines,J.
regarded the “affirmative action” by which Menow was removed
from the hotel as the crucial moment at which the likelihood of
injury became actually foreseeable. Admittedly, he referred to vari-
ous provisions in the Ontario liquor legislation, but he regarded
them as relevant only to the extent that they prescribed a certain
general standard of conduct with which the operator of a beverage
room is expected to comply and as qualifying his right to eject
an intoxicated patron.
If one thus analyses the judgments, especially those of Ritchie,
J. and Haines,J., it appears that foreseeability of harm or injury
is not an ingredient of the duty of care per se in so far as the
existence of such a duty must be established objectively and in-
40 See e.g. The Liesbosch Dredger v. The Edison, [1933] A.C. 449.
47 See infra, Fault, Strict and No-Fault Liability: Rights and Wrongs.
19741
RE-APPRAISAL OF THE DUTY OF CARE
dependently. This means that it must first be determined whether
the injured person’s interest which has been invaded was a pro-
tected interest, either in general or at least against violation by
the alleged tortfeasor. Unless it is so protected, the injury is not
tortious and the question whether it could or ought to have been
foreseen is immaterial. Of course, once it has been established
that the injured interest was a protected interest, foreseeability
becomes highly relevant; it is then related not to the existence of
the duty (which has already been determined) but to the blame-
worthiness of the tortfeasor’s conduct, i.e. his subjective culpability.
To equate foreseeability with the existence of a duty instead of
relating it to the breach of that duty after its existence has been
established may result in failure to distinguish between the objective
and subjective ingredients of the negligence concept. This may
lead to the classification of “conduct as ‘lawful’ or ‘unlawful’ in
the abstract”, the danger of which has been enunciated by Dean
Wright.4 8 The subjective character of the foresight element is also
emphasized in American jurisprudence, where it is unequivocally
related to the “standard of conduct” and not to the existence of the
duty.49
The equation of foreseeability with the existence of a duty of
care is also apt to obscure the fact that a finding of negligence
always involves two separate value judgments: one which deter-
mines in limine whether the injured person’s interest is worthy
of protection (i.e. whether a duty of care existed at all) and an-
other which then classifies the standard of conduct of the alleged
tortfeasor. It is only in this latter process of classification that
foresight becomes relevant: not to establish whether a duty exists,
but to decide whether there has been a breach of a pre-existing
duty. In the ordinary run of cases which are concerned with fully
recognized categories of negligence, it does not matter as a rule
if the duty situation and the foreseeability of harm are telescoped
into each other. But the distinction here emphasized becomes of
48 Wright, Cases on the Law of Torts 4th ed. (1967), 9.
49 See Restatement of Torts 2d, para. 281: The elements of a cause of action
for negligence are defined as “an invasion of an interest of another, if: (a) the
interest invaded is protected against unintentional invasion, and (b) the
conduct of the actor is negligent with respect to the other, or a class of persons
within which he is included…” (the other two requirements are irrelevant
in the present context). Para. 289 clearly relates foresight to the “standard of
conduct”, distinguishing between the general standard of the reasonable
man and the higher standard required from a person whose knowledge or
experience is superior to that of the ordinary reasonable man. This emphasizes
the subjective character of the foresight element.
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the utmost importance when a new category of negligence is
created as happened, it will be submitted, in the Jordan House
case.
The Breach of the Duty of Care
Of course, even when a duty between an alleged tortfeasor and
an injured person has been established and it has been found
that the harm or injury which the former has caused was foresee-
able, it is still necessary to show that such harm or injury was
the result of a failure to exercise the degree of care expected from a
reasonable man. Whether or not a person lives up to the required
standard of care depends, as Laskin,J. said, on the probability or
remoteness of injury and the gravity of such injury as balanced
against the burden of precautions necessary to eliminate the dan-
ger of injury or harm. Thus, after the Court had held that the
special invitor-invitee relationship between the hotel and Menow
justified the imposition of a duty of care and that the possibility
of an accident was by no means remote if Menow were ejected,
it followed that it was reasonable to expect the hotel to ensure
that Menow was not exposed to injury as a result of his intoxica-
tion. The Court held that vis-&-vis Jordan House, “no inordinate
burden would have been placed on it in obliging it to respond
to Menow’s need for protection”. 50 Laskin,J. suggested that a call
to the police or his employer were easily available “preventive
measures”; alternatively, a taxi-cab could have been summoned to
take him home, or similar arrangements made with another patron.
In the last resort, Menow should have been given a spare room
for the night rather than be permitted to leave the hotel by him-
self. From these observations, it may be inferred that Laskin,J.,
having dissented from Haines,J. on the importance of the affirma-
tive action by which Menow was turned out of the beverage room,
regarded the hotel’s failure to prevent Menow from leaving by him-
self as the breach of the duty of care which it owed him.
If this assumption is correct it raises two questions. First,
what was the hotel’s position prior to this time in view of the
fact that its staff had served Menow knowing of his tendency to act
irresponsibly when intoxicated? While this question must be raised
in the present context, it is proposed to deal with it in connection
with the distinction between protective and control legislation in
general. The second question arises from the fact that “[t]he
borderline between active misconduct and passive inaction has never
5o Supra, f.nt2, 111.
1974]
RE-APPRAISAL OF THE DUTY OF CARE
been easy to draw”.51 The difficulty here, though closely related to
the breach-of-duty problem, is normally regarded as one of causation
and will accordingly be considered as such. RitchieJ. saw the breach
of the duty in the hotel employees supplying Menow with beer in
quantities which they should have known would result in his being
incapable of taking care of himself. In the result, none of the judg-
ments expressed any doubt that the hotel was in breach of its duty
of care. The interest which they arouse on this point lies in the
different reasons on which this conclusion was based.
The Causal Connection between the Carelessness and the Injury
Finally, it is necessary to establish that the alleged tortfeasor’s
carelessness, i.e. his breach of duty, was the cause of the harm or
damage which the injured party has suffered. As a general rule, the
carelessness remains a legally relevant cause unless the plaintiff
would have suffered substantially the same kind of injury as he did
in fact suffer even if the defendant had not been negligent. There-
fore, it is clear that the Court was justified in finding that the hotel’s
carelessness was a legal cause of Menow’s injuries. Honsberger’s
negligence in hitting Menow was obviously not a novus actus in-
terveniens in the legal sense (although it justified apportionment of
fault) considering the short time which had elapsed after he was
turned out of the beverage room, and because the harm was of the
very kind which the hotel ought to have foreseen. Similarly, neither
the lift which Menow had obtained nor the fact that he was no
longer on his direct way home when the accident happened were
relevant as they had not resulted in a substantial change of the risk
to which the hotel had unreasonably exposed him.5s The suggestion
“that any duty that the hotel might have had evaporated because of
voluntary assumption of risk” received short shrift from LaskinJ.
who described it “as untenable, whether put on the basis of Menow’s
self-intoxication or on the basis that faced him when he was put -out
of the hotel” because it was “impossible to say that he both appre-
ciated the risk of injury and impliedly agreed to bear the legal
consequences”.53
51 Fleming, supra, f.n.31, 141, 170.
52 On the concept of legal cause, see generally Fleming, ibid., 169 ff. and
Restatement of Torts 2d, paras. 430 ff.
53 On the basis of self-intoxication only the apportionment of fault between
all three parties was justified. See further infra, The Court’s Value Judgment,
on this point. Furthermore, it should be noted here that Laskin,J. did not
regard the problem of self-assumption of risk strictly as one of causation,
but rather as a defence sui generis. See also e.g. Restatement of Torts 2d,
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However, although it is not altogether difficult to accept that the
Court was justified in finding that the conduct of the hotel’s manager
and other staff was the legal cause of Menow’s injuries, it is still
necessary to determine which of their actions constituted not only a
breach of the duty of care the hotel owed to Menow but was also
the causa causans, or one of several proximate causes of the latter’s
injuries. This is obviously not merely an academic exercise because
only the answer to this question can determine the ratio decidendi
of the judgments. For instance, Haines,J. regarded Menow’s eject-
ment as the turning point of events, while Laskin,J. treated it as
being of minor importance. Their difference of opinion would seem
to amount to this: Haines,J. emphasized the fact that the hotel took
“affirmative action” against Menow and thereby actively exposed
the latter to the dangers of the traffic on a busy highway; Laskin,J.
apparently thought that the method by which Menow was exposed
to this hazard did not matter and that the hotel’s duty was to
accept generally responsibility for Menow’s safety in this regard.
This means that he would have also held the hotel liable for Menow’s
injuries if he had left on his own accord, whether in response to
such a demand after making a nuisance of himself, or if he had just
decided to leave. In other words, Laskin,J. considered that the hotel
had a duty to prevent Menow from leaving by himself; if the hotel
failed to act as his guardian angel after the manager and his staff had
“assisted or at least permitted” his consuming liquor to the extent
that he was no longer able to take care of himself, it was immaterial
that they actually turned him out of the hotel, except perhaps in
terms of their moral blameworthiness.
If one adopts this point of view, the difficulty of establishing a
chain of causation between an omission and an injury disappears
completely, at least in situations such as Laskin,S. postulated in
Jordan House. The position simply is this: when I have a duty not
to cause a certain result, e.g. not to injure another person, any action
I take to cause injury constitutes a breach of that duty; if I have a
duty to prevent injury to that other person, then my failure to do so
amounts to a breach of my duty. In fact, however, it is submitted
that this explanation applies to all cases in which a person is under
a duty not to injure his “neighbour-in-law” because then he must,
in terms of Lord Atkin’s celebrated dictum, always “take reasonable
care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”. 4
paras. 496A496G. It is submitted, however, that for the purpose of the
present discussion of the case, it may be conveniently treated in the context
of causation.
54Supra, f.n.45 (Emphasis supplied).
1974]
RE-APPRAISAL OF THE DUTY OF CARE
On this basis the question of whether the defendant’s act was the
cause of the harm or injury suffered by the plaintiff is confined to the
comparatively few cases in which it is doubtful whether the defend-
ant’s action was the true cause or whether it merely provided the
opportunity for the infliction of harm on the plaintiff or for his in-
jury.5 5 The supply of liquor by a tavern owner to his patrons normally
provides only an opportunity for their becoming intoxicated. Thus,
despite the invitor-invitee relationship which exists in every case, the
operator of a beverage room normally would not be under a duty of
care to ensure that none of the guests drink to excess, even if intox-
ication per se would be regarded as “harm or injury”, which is not
the case. 6 Therefore, the finding that the conduct of the hotel’s
manager and other staff was a legal cause of Menow’s injuries re-
quires further explanation, particularly in the light of the Supreme
Court judgments which rejected as being decisive the “affirmative
action” by which Menow was turned out of the hotel. It is submitted
that the only possible explanation is that such a finding was based
on a value judgment made only after the Court was satisfied that,
objectively, a duty situation between the tortfeasor and the injured
party existed, and only after finding both carelessness and foresee-
ability.
The Court’s Value Judgment
In the final analysis, the demarcation of the sphere of the duty
of care in negligence will always depend upon the Court’s -assess-
ment of “the demands of society for the protection from the care-
lessness of others”. 7 It is for this reason that the “categories of
negligence are never closed”, 58 which means that in accordance
55 Where the action is likely to cause harm, a duty of care is imposed; where
it provides a mere opportunity, as a general rule no such duty exists. See Hart
and Honore, Causation in Law (1959), 230-231, where the problem is related to
the foreseeability test. It should be noted here that one and the same action
may, at one and the same time, be the legal cause as well as a mere opportunity.
For instance, a mother places a bottle of poison within easy reach of a small
child. If the child drinks the poison, the mother will have caused the harm
which befalls the child. If a lodger drinks from the bottle, she will be said to
have provided a mere opportunity.
56 The operator’s duty begins only when a patron is already visibly or
apparently intoxicated. LaskinJ. and Haines,I. expressly and Ritchiej. by
implication declined to impose a duty on tavern-owners to act as watch dogs
of their guests.
57 Lord Denning, M.R. quoting Lord Pearce in Hedley Byrne v. Heller (supra,
fmn.33, 534, 536): Dorset Yacht Co. Ltd. v. Home Of-ice, [1969] 2 All. E.R. 564,
567, [1969] 2 Q.B. 412, 426, [1969] 2 W.L.R. 1008, 1015, 1017.
58 Lord MacMillan in Donoghue v. Stevenson, supra, fan.45, 619.
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“with changing social needs and standards new classes of persons
legally bound or entitled to the exercise of care may from time to
time emerge”. 9 It is in this sense that Laskinj. must have felt the
need for the establishment of a new category of negligence when he
described Jordan House as a “case of first instance” and concluded
that the operator of an establishment supplying liquor ought to be
charged with a duty to take reasonable care to safeguard a patron
who becomes intoxicated from the likely risk of personal injury if
he is turned out of such an establishment. But on what ground
should such a duty be imposed? Why should the operator be made
the intoxicated patron’s keeper? After all, the patron is apparently
sober when he arrives and the operator lawfully supplies him with
liquor. Only when he becomes visibly or apparently intoxicated is
the operator under a duty to desist from serving him with more
drinks, a duty which is probably imposed upon him in the interests
of the public at large as well as in the interests of the patron. When
the latter becomes truculent, or makes a nuisance of himself, the
operator is entitled, and probably even compelled, to eject him. This
is clearly a right conferred, and a duty imposed, upon the operator
in his own interests and for the benefit of other guests then
solel
present. The supply of liquor, though potentially harmful and there-
fore subject to control and licensing laws, is recognized as a legiti-
mate pursuit of business activities in society. The legitimacy of
this activity is based on the premise that the public has an interest
in the maintenance of such facilities as beverage rooms, restaurants
serving liquor with meals, bars, and the like. This means that the
innkeeper’s interest in carrying on his trade, in so far as it serves
the corresponding interest of the public, outweighs prima facie the
interest of those members of the public who come to harm or suffer
injury if they abuse the facilities provided for them and consume
liquor in excess of their ability to carry it.
It follows that traditionally the responsibility not to get drunk
rests on the patron; the barkeeper’s responsibility not to sell liquor
begins only when the patron is already apparently in an intoxicated
condition The patron is “free” to get drunk, albeit at his own risk.
If he becomes disorderly, only he is subject to criminal sanctions
so long as the innkeeper does not serve him with more drinks. If
he is injured as a result of being ejected, he has no redress unless
excessive force is used against him: the innkeeper has not been
held responsible if he comes to grief on his way home or elsewhere.
See Street on Torts 5th ed., 105.
5 Asquith,LJ. in Candler v. Crane, Christmas & Co., [1951] 2 K.B. 164, 192.
60 Liquor Licence Act and Liquor Control Act, supra, f.n.11.
1974]
RE-APPRAISAL OF THE DUTY OF CARE
It is this laissez-faire attitude which the judgments in Jordan
House reject or qualify by calling for a comparison and evaluation
of the conflicting interests involved. On the one hand, there are the
interests of the innkeeper and his other guests in not being disturbed
by a man who cannot hold his liquor; on the other hand, there are
now also the interests of the intoxicated patron to be taken into
account.61 But how far shall the latter prevail over the former? So
far, it seems clear enough that even a drunkard’s life and health
rank higher than the innkeeper’s and his other guests’ convenience.
Will the same apply to the intoxicated patron’s property? How far
is it likely that Jordan House will be applied to other situations?
Will the tavern-owner be liable if he merely fails to prevent an
intoxicated patron from leaving if it is obvious that he will be unable
to take care of himself alone? Although the answers to these ques-
tions must ultimately depend upon the Court’s views of the social
needs at the time they arise, they will also require a decision on
how far the Court is allowed or prepared to go in converting relevant
liquor control and licensing laws from control norms into protective
norms.
Control and Protective Legal Norms
The difficulty involved in drawing the distinction between
control and protective norms is known by every legal system. In
common law jurisdictions it lies at the root of the problem of
whether the breach of a statutory duty confers a right on others to
claim damages for injury to their person or property following on
the breach per se. In code systems the difficulty does not only arise
with reference to specific enactments, but also in connection with
the “blanket” section found in most civil law codes by which a
person who contravenes a statute enacted for the protection of
others is liable to make good the damage which another person
may suffer as a result of the contravention.62 In theory the difficulty
61 It is perhaps significant that Laskin,J. could refer only to one Canadian
case in which this conflict of interests has been considered during the past
fifty years: Dunn v. Dominion Railway Co., [1920] 60 S.C.R. 310; 52 D.L.R. 149,
where a majority of the Supreme Court allowed the claim of the deceased
estate of a drunken passenger who was killed by a passing train after he had
been ejected at a closed and unlighted station. There it was held that the
“right of removal of a disorderly passenger… conferred on the conductor
is not absolute. It must be exercised reasonably [and cannot be exercised]
under such circumstances that, as a direct consequence, [the passenger] is
exposed to danger of losing his life or of serious personal injury.” (Per
AnglinJ. at 318 and 154 respectively).
62 E.g. s.823 BGB (German Civil Code); Arts. 1382, 1384 C.C.
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is easily resolved: a statute, or a common law rule for that matter,
is a protective norm if its purpose is to protect the particular in-
terests of a class of persons against a particular kind of hazard or
harm; it is a control norm if its purpose is to protect the interests
of the state or “to secure to individuals the enjoyment of rights or
privileges to which they are entitled only as members of the
public” 8
In practice, however, it is often extremely difficult to forecast
whether a court will classify a particular norm as a control
norm or as a protective norm, and as the classification invariably
calls for the determination of a duty problem, it always involves “a
large element of judicial policy and social expediency.., however it
may be obscured by use of the traditional formulae”.64 Thus it is
said on the one hand that no action lies, as a general rule, against
a local authority or public amenities company which fails to carry
out its statutory duties 5 On the other hand, in Dorset Yacht Club v.
Home Office 0 the House of Lords held that the Home Office was
liable for the damage which Borstal boys had caused to the Yacht
Company’s property after they had escaped from custody due to the
negligence of the Crown officers who were responsible for them. A
less progressive court might have held that the statutory provisions
which regulate the supervision of Borstal boys are intended solely
for the protection of the State or society as a whole and refused to
grant a remedy to the plaintiff. 7
013 Restatenent of Torts 2d, paras. 286, 288. But see also infra, f.n.67.
64 MacDonald,J. in Nova Mink Ltd. v. Trans-Canada Airlines, [1951] 2 D.L.R.
241, 256. See also Lord Denning’s observations supra, text ad f.n.57.
05 See e.g. East Suffolk Rivers Catchment Board v. Kent, [1940] 4 All E.R.
527; H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 247 N.Y. 160 (C.A.
1928).
66 Supra, f.n.57 (C.A.); [1970] 2 All E.R. 294, [1970] 2 W.L.R. 1140 (H.L.).
While the Court of Appeal might have reached the same result ten or fifteen
years ago, it is doubtful whether the House of Lords would have done so at
that time. See also infra, f.n.67.
07 The fact that the argument in the Dorset Yacht Club case, ibid., turned
to a large extent on questions of foreseeability and remoteness is irrele-
vant in the present context, as the court’s value judgment may find its
expression in any one, or all, of the four elements of the negligence concept.
See also Levine v. Morris, [1970] 1 All E.R. 144 (C.A.) where it was held that the
Ministry of Transport owes a duty to motorists when putting up road signs
and is therefore liable to individual motorists who may accidentally leave the
road and collide with a sign which, in breach of the duty, is so placed that a
collision may occur with comparative ease. Contrast Coote v. Stone, [1971]
1 All E.R. 657, [1971] 1 W.L.R. 279, where failure to comply with a regulation
which prohibits stopping on a “clearway” was held to be only a control norm.
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RE-APPRAISAL OF THE DUTY OF CARE
The “conversion” or extension of a statutory control norm into
a general protective norm on the basis that the former indicates a
“standard upon which a common law duty [could] be founded” is
thus generally a matter of judicial policy.6 But although this means
that the crucial decision about the legal rule to be applied or
established, and also about the scope of that rule, has been made
before the judgment is cast into syllogistic form,69 legal reasoning
requires that the decision be explained by the use of “traditional
formulae”.70 Here the problem is that it is often difficult to justify
in strictly logical terms what is essentially a value judgment.71 How-
ever, it is possible to determine how the value judgment is arrived
at, and this in itself is important. The object of control norms is
twofold: to promote the welfare of society (e.g. establishment of
public utilities, social services and the like, as well as ensuring that
they are run efficiently); and to regulate private and public activities
with a view to potential risk of injury or harm to members of the
public. In a sense, therefore, the difference between control and
protective norms is one of degree rather than of principle.
In another sense, however, there is this distinction: protective
norms postulate that the activities to which they relate can be carried
on only on the condition that they do not result in harm or injuries to
68See supra, The Judgments and Fleming, supra, f.n.31, 126, who sug-
gests that the impasse which the conflicting considerations militating for and
against a norm being declared either “protective” or “control” may be avoided
by predicating “civil liability on wilful and negligent breaches alone or to
admit the excuse of inevitable accident, mistake and necessity”; alternatively,
one may “reject all rules of thumb… and leave to the trier of facts what
weight to attach to the statutory prescription in the light of all attendant
circumstances”.
69 See Cross, Precedent in English Law 1st ed., 204; 2d ed., 178.
70 Supra, text ad f.n.64.
71 Once the premise has been selected, the difficulty seems to disappear.
The desired result can then be logically explained, because it is inevitably
determined by the chosen premise. But how is this premise determined? When
that determination was made, “[justice reacted upon logic, sentiment upon
reason, by guiding the choice to be made between one logic and another”
(Cardozo, Nature of the Judicial Process (1921), 45). It may be said that the
conversion of a control norm into a protective norm can be more easily
justified in terms of logic than refusal to convert it, especially in cases in
which “[t]he duty [is] of such paramount importance that it is owed to
all the public” because it would be “strange if a less important duty which
is owed to a section of the public may be enforced by an action, while
a more important duty which is owed to the public at large cannot”
(per Lord Atkin in Phillips v. Britannia Hygienic Laundry, [1923] 2 K.B. 832,
841, [1923] All E.R. 127, 138). But even so, the decision remains essentially a
value judgment.
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others, whereas control norms relate to activities which are permit-
ted by law despite the fact that they inevitably involve a certain
amount of risk of harm or injury to others. Control norms thus
regulate those activities in the pursuit of which the law permits
the creation of danger of injury to others and is prepared to tolerate
within certain limits that such others will in fact suffer injury and
harm from time to time 12 But since in such cases the causing of
harm or injury is not regarded as unlawful per se, failure to comply
with a control norm does not entail liability for such injury or harm.
It is assumed that the control norm imposes no duty on the offender
toward the person who has been injured.
The decision that a norm is not a protective but a mere control
norm is a quantitive rather than a qualitative value judgment as it
is invariably only a matter of expediency which cannot be justified
on any other grounds than that “[t]he law does not spread its pro-
tection so far”.73 When the courts consider that mere regulation of
the activities to which a control norm relates is no longer sufficient
in the interests of society, they gradually convert it into a protective
norm by holding that “[c]ompliance with a legislative enactment or
an administrative regulation [i.e. any control norm] does not pre-
vent a finding of negligence where a reasonable man would take
additional precautions”. 74 This means that the standard of conduct
laid down by the control norm now only defines “[the] minimum
standard, applicable to the ordinary situations” which it is intended
to regulate. 5 This is what happened in the Jordan House case. The
result is that, in reality, another category of negligence has been
added to those which have hitherto existed. Thus, the courts are
again “at large” and faced with the task of defining the scope of
the new duty situation which has been created.
The Scope of the New Category of Negligence
In the Jordan House case, the imposition of the duty of care on
the hotel was justified on the basis of its invitor-invitee relationship
with Menow, and the knowledge of the hotel operator and his staff
of Menow’s propensity to drink to excess and of his inability to take
care of himself when he was intoxicated. The breach of that duty was
72 Therefore, ultra-hazardous activities are those which are most strictly
controlled.
73 See H.R. Moch Co. v. Rensselaer Water Co., supra, f.n.65, 899 and 165, where
Cardozo,CJ., quotes the U.S. Supreme Court in Robins Dry Dock Repair Co.
v. Flint, 275 U.S. 303, 48 S.Ct. 134, 726 Ea. 290.
74 Restatement of Torts 2d, para. 288C.
75 Ibid., Comment.
19741
RE-APPRAISAL OF THE DUTY OF CARE
seen to consist of the manager and other employees permitting
Menow to consume a quantity of beer which they ought to have
known would make him incapable of looking after himself and
thereafter exposing him to the hazards of traffic without taking any
measures to ensure his safety. LaskinJ. also stressed that the hotel
had served Menow “in breach of statutory injunctions against serving
a patron in an intoxicated condition”. Ritchie,J. did not refer to any
breach of the relevant liquor control and licensing laws. This appears
to be the only difference between his judgment and that of
Laskin,J. and it is obvious that he regarded it as significant. Both
judgments declined to attach any importance to Menow’s ejectment,
as Haines,J. had done. This would seem to indicate that the hotel’s
duty went further than merely not to turn him out, but that it was
under the obligation to prevent him from leaving the beverage room
unless he was in the company of a responsible person able and
willing to look after him. On this basis, his ejectment was important
only in that the hotel possibly advanced the time at which it reached
the final locus poenitentiae at which it could have saved itself from
the consequences of its breach of duty.
The emphasis which the judgments placed on the knowledge by
the hotel manager and staff of Menow’s propensities raises the
question of how intimate that knowledge must be before it will be
regarded as a factor upon which to found an innkeeper’s duty of
care to an intoxicated guest. Menow was a “regular” of the beverage
room of Jordan House. This fact would justify the demand that its
employees pay special attention to Menow, and Ritchiej. seemed
to think that they were under an obligation to refuse serving him
even before he became visibly and apparently intoxicated. The same
may also have been the view of Laskin,J. despite his repeated
references to the hotel having served Menow in breach of the relevant
liquor control and licensing regulations. If this interpretation of the
judgments is correct, then the question arises whether a similar
duty will in the future be imposed on liquor licensees with respect
to every patron whom they have reasonable grounds to believe will
become visibly or apparently intoxicated if served another drink.
A breach of this duty may often be difficult to prove, but difficult
does not mean impossible. At least for the time being, the courts
are not likely to be overly zealous in finding that a breach of such
a duty has been established, but it is by no means impossible to
say that such a duty will be imposed in appropriate cases.
As regards the reservation that a great deal must always turn on
the knowledge of the operator or his employees of the patron and
his condition, a state of approaching intoxication is often as visible
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and apparent as the actual state of intoxication. But assuming that
the operator and his staff, not being required to act as watch dogs,
have excusably supplied a casual guest with liquor until he is visibly
intoxicated, will they be permitted to turn him out into a busy
highway or do they come under a duty to prevent him, too, from
leaving the beverage room? In the Jordan House case, the manager
and his staff knew that Menow would be incapable of looking after
himself, but it must be admitted that not all persons under the
influence of liquor are necessarily incapacitated. There are cer-
tainly grounds for saying that the operator of a beverage room
should not be made the keeper of every guest who has had
“one over the dozen”. Nevertheless, there will always be a number
of cases in which a patron is either obviously incapable or about
whom a reasonable man must have considerable doubt as to his
fitness to face the hazards of the traffic on a busy road. The
invitor-invitee relationship exists between a tavern-owner and a
casual guest just as it did in Menow’s case, and in the hypothetical
situations discussed here the tavern-owner has also the knowledge
of the guest’s condition. It is submitted that it can hardly make any
difference whether that knowledge has been acquired over a long
period of time or a few minutes before the patron is forced, or
permitted, to face the same dangers as those to which Menow had
been exposed. Logically he should be entitled to the same care as
the customer of long standing. However, it must, of course, always
be remembered that the life of the law is not logic but experience.76
Another possible situation which should be considered concerns
the person who arrives at a beverage room in an already intoxicated
state and whom the operator has refused to serve with additional
drinks. This person is not an invitee, but in the position of a tres-
passer. Is the innkeeper permitted to eject him, even when it is
obvious that he is incapable of taking care of himself? The duty
towards a trespasser is generally only to “refrain from intentional
injuries or reckless acts” 77 Depending on the degree of the tres-
passer’s intoxication, the innkeeper may well act recklessly if he
ejects him. But even though this may not be the case, he might still
become liable if the standard of conduct towards trespassers in
Graham v. Eastern Woodworkers Ltd.78 is adopted. MacDonald,J.
76 O.W. Holmes, The Common Law (1881), 1, However, it should be borne
in mind that in Dunn’s case (supra, f.n.61), the train conductor had no special
knowledge of the passenger’s disposition or long experience of his conduct
when under the influence of drink.
77See generally B.M.E. McMahon, Occupiers’ Liability in Canada, (1973)
22 I.C.L.Q. 515, 528.
78 [1959] 18 D.L.R. (2d) 260.
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RE-APPRAISAL OF THE DUTY OF CARE
said in that case that an occupier must always act “with due regard
to the foreseeable risks incident thereto of injury to other persons,
including trespassers, known to be in the area” or, of course, on his
immediate premises. 78
a It seems doubtful that an occupier will be on
safer ground if Herrington v. British Railway Board9 is held to be
applicable to the innkeeper-intoxicated trespasser relationship until
that decision has been further explained. s0 It might be argued that
this is a sui generis relationship to which the general rules of
occupier’s liability cannot be applied. If this should be correct, then
the tavern-owner’s position might be regarded as similar to that of
the person who passes so close to the proverbial pool in which a
small child is drowning that the child is able to grab his leg. Is the
passer-by entitled to shake off the child? It is suggested that no
court would tolerate such callousness, although consideration of this
problem has hitherto neatly been avoided.
It is surprising how seldom the problem of an innkeeper’s duty
of care has attracted the attention of the courts. It was, however,
recently considered in Germany where the High Court at Munich
had little sympathy for an intoxicated guest who was run over by a
car and killed after he had been turned out. There, the Court laid
down as a general rule that an innkeeper is under no duty to inform
the police or the local Red Cross organization if an intoxicated
patron leaves his premises and, by necessary implication, that he
need not prevent him from leaving.81
78a Ibid., 271.
79 [1972] A.C. 877.
8o See Salmond on The Law of Torts 16th ed. (1973), 286.
81 O.L.G.
(Oberlandesgericht) Munich 11.2.1966, NJW
(Neue Juristische
Wochenschrift) 1966, 1165ff. In this case, the deceased had arrived at the inn
already in an intoxicated condition. He was nevertheless given a glass of
beer, which was unintentionally knocked over by another guest. The deceased
thereupon started a quarrel, and when asked to leave he refused and took a
knife from his pocket. Thereupon he was led out of the beverage room into
a court yard with (in the words of the judgment) “gentle force”. Shortly
afterwards another guest arrived and reported that he had seen the deceased
(then still very much alive) lying in a ditch only about 10 yards from the inn.
Subsequently he was killed by a motorist who was found to have been entirely
blameless. A claim against the innkeeper was dismissed. It was based on
various provisions of the German Criminal Code, inter alia a section which
makes it an offence (and is admittedly a protective norm) to expose a
helpless person to injury or harm. The Court held on the facts that it had not
been established beyond doubt that the deceased was in a helpless condi-
tion, nor (if he was) that the innkeeper had negligently failed to recognize
that condition when the deceased was ejected. The judgment also pointed out
that the deceased; although originally an invitee, had become a trespasser
when he refused to leave the inn. Consequently, the innkeeper’s action was
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The extent to which the Jordan House case may be regarded as
having heralded a change in the law will only become apparent as
more cases of this kind come before the courts. It is likely that such
cases will be brought by motorists who become involved in accidents
which result in injuries (but not death) to themselves.’ The temp-
tation to extend the liability of the operators of licensed premises
is obvious. Of course, it may be argued that on a proper construction
of the statutory provisions, the legislator has already decided that
such liability should not be imposed: he specifically made licensees
liable for damage caused to third parties by patrons under the
influence of liquor. In other words, the legislator would have
introduced liability for injury to intoxicated patrons when he im-
posed liability for damages to third parties on tavern-owners. On
the other hand, it may be argued that the legislator intended to
put the existence of a licensee’s liability vis-&-vis third parties beyond
doubt, but was satisfied that the duty relationship between tavern-
owners and their patrons would be worked out gradually through
the courts by the application of common law principles as social
needs and the justice of individual cases required.
There is after all a world of difference between the two situations.
As between the innkeeper and third parties, the former provides the
opportunity for his patrons to become intoxicated, and if the patron
in a state of intoxication causes injury to others, then there is no
reason why the innkeeper and the patron should not both be liable. As
between themselves, however, entirely different considerations must
objectively lawful and not merely subjectively excusable or “not culpable”
(see supra, text before f.n.48). Not even the fact that he was subsequently
informed that the deceased was lying in a nearby ditch (which meant that he
must have become helpless almost immediately after he had been ejected)
imposed a duty on the innkeeper to come to his assistance. It is on this basis
that the principle which the Court enunciated (as stated in the text prior to
this note) is of general application despite the special facts of the case.
Another facet of the decision, which is interesting when compared with the
attitude of the Court in the Jordan House case, is that the German Court
attached at least some importance to the fact that the deceased would not
have been on the main road on which he was killed if he had gone home on
a direct route.
82 S.67 of the Liquor Licence Act, supra, f.n.1l, imposes liabilities under the
Fatal Accidents Act on the operator of a beverage room who sells liquor to a
person “whose condition is such that the consumption of liquor would
apparently intoxicate him.., so that he would be in danger of causing injury
to his person” if the latter should commit suicide or meet death by accident
while under the influence of liquor. That section does not provide for liability
of the operator of a beverage room if that person merely injures himself but
does not die from such injuries.
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RE-APPRAISAL OF THE DUTY OF CARE
apply. Prima facie the patron who drinks to excess is more blame-
worthy than the innkeeper, who merely supplied the liquor. How-
ever, this may not always be so, as the Jordan House case shows.
Here, the operator of the beverage room or his staff, in the words
of Ritchie,J., “assisted or at least permitted””
a patron to become
intoxicated when they were in a better position to appreciate the
consequences than the patron himself. The same might apply where
the patron is still rather young and therefore less responsible than
an older person.
The extent to which “circumstances alter cases” may again be
illustrated by reference to two German decisions which were reached
by the application of fundamental principles without the assistance
of relevant liquor legislation. In 1953, the Federal Supreme Court
of Germany decided in a criminal case that a tavern-owner was
under a duty to prevent a patron from driving his motor car if he
had supplied him with so much liquor that the patron was no longer
in a position to have full and proper control of his car. This duty
was held to exist irrespective of whether the tavern-owner had been
at fault in supplying liquor to the patron concerned.8 One year
later, the district court at Heilbronn applied the ratio decidendi of
the Federal Supreme Court to a civil case in which an innkeeper had
allowed a driver to continue his journey, knowing that the patron
was under the influence of liquor to such an extent that his driving
ability was markedly impaired. The Court held the innkeeper liable
for the injuries which a third party suffered in an accident caused
by the intoxicated driver’s inability to control his car.8 5 In both
cases, the Courts held that it was not the fact that the innkeeper had
supplied the guest with an excess of liquor which made him cri-
minally and civilly liable, but that it was his failure to take pre-
ventive measures which was decisive.
While these two cases differ from Jordan House, it is submitted
that they are relevant because they illustrate the attitude of the
courts to the problem of when a tavern-owner should be held liable
for the consequences of having supplied a patron with an excess
of liquor, and injury is suffered by the patron or third parties. The
same applies to a third case 6 in which the Federal Supreme Court
of Germany qualified its earlier judgment.8 7 In that case, three
patrons entered a bar at midnight when they had already consumed
83 Supra, f.n2, 105.
84 BGHSt 22.1.1953, NJW 1953, 551ff.
85 LG (Landgericht) Heilbronn 3.2.1954, NJW 1954, 1922ff.
S6BGHSt 13.11.1962, NJW 1964, 412ff.
s7 Supra, f.n.84.
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a certain quantity of liquor. They then proceeded to drink 10 or 12
whiskies each. When about three hours later they wanted to drive
off in their motor car, the barkeeper advised them to take a taxi,
as he realized that none of them was capable of taking proper control
of the car. They did not take his advice and subsequently the car was
overturned and two of the party were injured.
In these circumstances the Federal Supreme Court acquitted the
barkeeper. It maintained the principle it had established in the earlier
case,8s but introduced a substantially different standard of care with
regard to the civil liability of an innkeeper who permits an intoxica-
ted patron to drive off in his motor car. It seems inevitable that, in
yet another case, the Federal Supreme Court will openly admit that
in German law, different standards will be applied depending upon
whether the intoxicated patron has caused an accident in which
only he has come to harm, or whether the accident has resulted in
injuries to third parties.
Fault, Strict and No-Fault Liability: Rights and Wrongs
Few discussions of problems in the law of tort can nowadays
avoid the controversial issues of fault and no-fault liability. In the
Jordan House case, the hotel’s liability was clearly predicated upon
fault, and there is no indication that the Court even contemplated
the possibility of liability being imposed on any other basis. On the
other hand, it may well be that strict liability is attached to inn-
keepers if their intoxicated patrons cause injuries to third parties.8 9
At the same time, it is interesting to consider the effect of the Jordan
House decision in a jurisdiction which has introduced a system of
no-fault liability with regard to motor car accidents. Assuming that
Honsberger had not been negligent and that the damages to which
Menow was entitled did not exceed the amount of his no-fault
insurance, would Honsberger’s
insurance company have to pay
Menow? If so, would it then be entitled to claim from Jordan House
the amount it was obliged to pay to Menow? Alternatively, if (as in
the, actual case) Honsberger was negligent, would his insurance
88 Ibid.
80 Prima facie s.67 of the Liquor Licence Act, supra, f.n.11, which makes an
operator liable to third parties who have suffered harm or injury as the
result of an intoxicated patron’s actions, suggests the imposition of strict
liability. But the absence of expressions such as “wrongfully” and the like is
not always decisive, and it may be that at least certain defences showing
absence of fault will be admitted. (I have been unable to find among the
sources available to me any decisions directly in point).
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RE-APPRAISAL OF THE DUTY OF CARE
company then be prevented from recovering a contribution from
Jordan House?
In connection with
the possible demise of fault
liability
in certain areas of tort law,90 an interesting suggestion has
recently been made by a Canadian writer who believes that the
Jordan House case proves that “[t]he availability of the tort remedy
(based on fault) may act as a prod where the criminal law has
become a dead letter”.91 Fault or no-fault liability, this case is likely
to induce operators of beverage rooms to seek insurance coverage
against such claims as Menow’s, and the availability and cost of such
insurance may well have a bearing on the attitude of the courts in
extending or restricting the tavern-owner’s liability in similar situa-
tions. In more general terms, whether one favours an extensiorl of
the principle of no-fault liability in the law of tort, or whether one
adopts a more cautious attitude toward it, Jordan House illustrates
the need for careful reconciliation between the traditional fault
principle and the introduction of the no-fault liability rule. Even if
the latter gains in momentum it is likely that both of them will’co-
exist for some very considerable time.
Even more important is to ensure that the introduction of a
system of no-fault liability will not destroy the distinction between
“right” and “wrong” in the law of tort. This consideration does not
affect only those who believe, as the writer does, that the law should
reflect what has been called “the moral sense” of society, but also
those who do not believe in the “minimum ethical content of law”
and maintain that law and morality should be kept apart. There
must be a criterion which determines whether or not an action or
omission is justified, as opposed to being merely excusable 9 2 and it
is difficult to see how this criterion can be expressed otherwise
than in terms of “right” and “wrong”. A distinction must be made
between an action which is right per se and one which is wrong
though it may be excused.
The significance of this submission may be illustrated by
reference to the case of Depue v. Flatau,93 where it was held
that a rancher, who refused a visitor who had been taken ill
permission to stay at his house overnight, was liable for the
injuries which the latter suffered due to the extreme cold after
90 See Fleming, The Decline and Fall of the Law of Delict, (1973) VI CILSA
259.
91 Linden, supra, fmn.44, 481.
92 See text supra, ad f.n.47.
93 100 Minn 299, 111 N.W. 1 (S.C. 1907). See also Wright, supra, f.n.48, 118.
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he had been turned out by the rancher. One might argue that a party,
in whose favour a duty of reasonable care was held to exist and to
have been breached, ought to be entitled to use reasonable force
against the other party. This would mean that the visitor in Flatau’s
case, or a person who might have accompanied him, would have
been entitled to resist the rancher. It is easy to envisage that in the
course of a scuffle the rancher might have suffered injury either to
his person or to his property. In a system in which no-fault liability
is taken to its logical conclusion, the question as to which of the
parties was at fault would not be asked, and both the visitor and
the rancher would have been entitled to compensation.
No doubt, it is not only desirable but a social necessity that
victims of accidents and of wrongful acts should receive compensa-
tion. But should society accept responsibility for such compensation
without seeking recovery in appropriate cases? The principle of loss
distribution is obviously merely an extension or application of
Bentham’s rule of the greatest happiness for the greatest number,
and its introduction is a sign that a society has reached a certain
stage of maturity. However, loss distribution does not have to
become indiscriminate and random distribution. There must be a
measure of decision and the criminal law is certainly not a very
appropriate means to provide it. Nor is insurance a bottomless
barrel which can supply a panacea. Nothing that has been said here
should be regarded as a negation of the principle of loss distribution
per se, but as a caveat against its acceptance until it has been fully
developed. New remedies often bring with them new dangers which
then take the place of those which they are intended to combat.
