The High Court dismissed a claim by Mary Houlihan, the defendant in a personal injury action, seeking an indemnity or contribution from pub owners Concepta and Seamus Kelly over a fatal 2005 road crash. Mr Justice Feeney ruled on 4 March 2011 that the Kelleys owed no duty of care of the kind alleged and that no separate breach of duty to the plaintiff had been established.
Mary Flanagan was driving on the Sligo to Bundoran road near Bunduff Bridge, Tullaghan, when a car driven by John Connolly crossed onto the wrong side and hit her vehicle. Connolly and Flanagan’s daughter, Anne MacSorley, died. Flanagan suffered serious injuries. The judgment said Connolly was entirely responsible for the collision and that Flanagan was not contributorily negligent.
Flanagan’s action against Houlihan had already been settled, with damages and costs paid without a deduction for contributory negligence. The issue before the court was limited to Houlihan’s third-party claim against the Kelleys. She alleged that they, or their staff, had negligently served Connolly alcohol despite knowing or having reason to know he was likely to drive. The Kelleys denied liability and argued that Connolly’s driving caused the crash.
The court found that Connolly, a regular customer, drank about four-and-a-half to five-and-a-half pints of Guinness at the Diamond Bar between about 11.30am and 3.15pm. A post-mortem blood sample showed an alcohol level of 242mg%, about three times the then statutory driving limit. The judgment said he likely consumed more alcohol elsewhere that day. The Kelleys testified that they had not noticed signs of intoxication; the judge accepted their evidence. Connolly left while the bar was unattended, and there was no evidence about much of the time between his departure and the crash, at about 4pm.
The judge distinguished the statutory offence of supplying alcohol to a “drunken person” from exceeding the legal blood alcohol limit for driving. He found it had not been established that Connolly met the statutory definition of a drunken person while in the pub, or that the Kelleys breached the licensing laws. He also rejected the argument that they had released Connolly onto the road: Connolly left without their knowledge.
The court declined to create a general common-law duty requiring publicans to stop serving a customer because the customer might drive after exceeding the legal limit, or to restrain a customer or take their keys. The judge said such a requirement would need legislation with appropriate legal powers. He found no assumption of responsibility or exceptional circumstances giving rise to a duty on these facts, and no distinct duty to Flanagan established independently of the alleged duty to Connolly. The third-party claim was therefore dismissed; the judgment did not reopen or alter the settlement of Flanagan’s action.