Friday, May 15, 2009

My 1st attempt to write legal argument (with comment from my lecturer)


From the factual background given, it is identified that the subject in question is that if Ali owes a duty of care to Carlos by letting him drink to an intoxicated point and letting him enter into agreement to let intoxicated Bianca drive him back home making Ali liable for the damages of the injury suffered by Carlos from the collision due to Bianca’s irresponsible driving under the influence of alcohol.


Ali is the host of the party that supplied a bath filled with beers to the guests, inviting them to drink while enjoying their time there, in which had opened the opportunity for Bianca and Carlos to drink to a heavily intoxicated state and later on putting themselves in danger.

In the case of Johns v Cosgrove & Ors (1997) MVR 110, the court referred to a certain authorities established in Australia, England and Canada supporting the principle that there is responsibility of the alcoholic drink provider to the person who have consumed it and is heavily intoxicated in result of the consumption to ensure that he/she is not exposed to any foreseeable danger.

In the case, Derrington J ruled:

It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonable foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this.
Ali was aware that Carlos was in such state and was in reality putting him in potential danger by accepting to be driven home by another person who is under the influence of alcohol.

Therefore Ali does owe Carlos a duty of care during his intoxicated state at and after her party.


Since it has been established that Ali does owe a duty of care to Carlos, it is now important to identify if there is any breach of such duty.

From the hypothetical, it is evident that Ali was aware of the agreement made by both of the intoxicated persons, in which they are not in proper state of mind to make a sound judgement. Driving under the influence of alcohol obviously would expose the driver and any of the passengers to a foreseeable danger. With Bianca also being known by Ali as a person with ghastly drinking habits and severe intoxication problem; it places a greater weight to the foreseeable danger ahead for both the driver and the passenger.

Ali’s decision in not objecting or do anything to stop Bianca from driving Carlos home, implies that Ali enabled Bianca to drive in a drunken state which resulted in the accident that injured Carlos. Ali had exposed both Bianca and Carlos to danger, consequentially breached her duty of care.


As a result of Ali’s breach, she had become liable to the damages suffered by Carlos.
However, Ali is not the only person who should be held liable to the damages. Carlos had accepted the beer provided by Ali and became drunk although knowing that later he has to get himself home. In a way he should have foreseen the danger that he might have put himself in if he’s intoxicated at the party.
In the case, the judge referred to the cases Kilminster v Rule (1983) 32 SASR 39; McPherson v Whitfield [1996] 1 Qd R 474. The judge agreed to the rule that if the plaintiff had deliberately become intoxicated, he shall be liable to the damages because he is also at fault into putting himself into any potential danger.


From the analysis, it is evident that Ali is at negligence by breaching her duty of care to Carlos during his intoxicated state by letting him become the passenger of the drunken Bianca. However, Carlos is also at fault by being deliberately intoxicated at Ali’s party foreseeing the fact that he might also put himself in danger. Therefore both parties are liable to the damages.


This is a good attempt. Your response is well structured and argued. Your classification of issues however is casery and you have not spotted the main issues raised by the question.


okie dokie... Now I know.