ANALYSIS:A drinker who dies is solely to blame
BAR STAFF will have breathed a sigh of relief at the acquittal of two of their colleagues by direction of the trial judge yesterday. This followed hours of legal argument about whether there was a “chain of causation” linking the death of Graham Parish directly to the actions of the bar staff who had served him a large amount of alcohol.
The judge found that, while there was enough evidence of “gross negligence” by the men to be brought to the jury, the fact that Parish had taken the decision to consume the alcohol broke the “chain of causation” linking the barmen’s actions to his death.
This was the first time bar staff had been charged with manslaughter arising out of serving excessive alcohol. The charge came under the common law heading of “involuntary manslaughter”, where the accused does not intend to harm the victim, but acted in such a negligent way it was foreseeable that harm would ensue.
Such cases are very rare. The previous such prosecution was in the late 1990s when a fairground operator was charged when a mother and daughter died after chairplane came off during a ride.
Yesterday’s case followed a recent High Court judgment which also emphasised the personal responsibility of the consumer, rather than that of the providers of the alcohol, for any injury that followed.
In that High Court civil case which involved drink driving, Mr Justice Feeney reviewed the law in several common law jurisdictions about the responsibility of bar staff for the actions of those who consume alcohol on their premises.
He said there was a wide divergence between Australia and the UK on the one hand, and Canada and the US on the other, in their attitudes towards the responsibilities of alcohol providers. He pointed out that this reflected the different historical and cultural contexts. Both the US and Canada had had years of prohibition, and this was reflected in their continuing approach to alcohol.
The Canadian courts had found that providers owed a broad duty of care to those consuming their alcohol, and US laws in most states held retail establishments accountable for harm, death or other damages caused by an intoxicated customer.
However, in Australia the courts declined to impose alcohol-provider liability, and in the UK, while each case was fact-dependent, there was a clear reluctance to impose liability except in exceptional circumstances. He agreed with this approach, and found the bar staff in this instance did not owe a duty of care to the drink-driver.
This judgment, combined with yesterday’s acquittal, means that, except in exceptional circumstances, criminal responsibility for death or injury arising from consuming large amounts of alcohol rests with the consumer, not the provider.
The DPP can appeal, but this is unlikely, legal sources say. He must identify an error of law made by the judge, and the judge was entitled to rule that the chain of causation was broken.
This does not mean there are no consequences for a publican who serves alcohol to a person who is already intoxicated. Penalties do exist in the Licensing Acts, ranging from fines to the closure of a premises, but not to criminal liability.
Once again, the answer lies in legislation. If citizens want to see a higher level of liability imposed on those who serve alcohol to people clearly a danger to themselves or others due to intoxication, they should demand action of the Oireachtas.
If the Oireachtas responds it will not have far to go. The Law Reform Commission has already published a report on involuntary manslaughter, with a short draft Bill defining unlawful killing arising from gross negligence.
It would arise where the accused person was negligent to a high degree; the negligence caused the death of the victim; it involved a high degree of risk or likelihood of substantial injury to others and the accused person had the mental capacity to appreciate the risk. That definition if applicable to the Tipperary barmen case might have had a bearing on the outcome.