Law Times

Page 16 November 25, 2013 Law Times • BRIEF: STRUCTURED SETTLEMENTS Bars often targeted in impaired driving cases BY YAMRI TADDESE Law Times I n serious personal injury cases resulting from drinking and driving, experienced counsel will trace where the person consumed the alcohol, according to trial lawyers who say lawsuits should name commercial establishments as defendants if there's evidence of over-serving. Lawyer Roger Oatley is taking a bar to court in a case involving a drinking and driving suspect who allegedly hit a pedestrian before fleeing the scene. Oatley says his client, Joseph Rochon, found himself bleeding and in a coma after the incident at a Barrie, Ont., intersection in February 2009. Rochon is now seeking $15.5 million in damages against the driver, Alan MacDonald, and the bar that allegedly let him drive after he consumed too much alcohol. None of the allegations have been proven in court. Rochon is "so permanently brain damaged that he will never work and will always depend on others to care for him," says Oatley. "In very serious personal injury cases, counsel have an obligation to look for any reasonable source of compensation," Oatley continues. "The MacDonald case is an example where there's a reasonable likelihood of proving that the bar overserved the driver." Alf Kwinter, a partner at personal injury law firm Singer Kwinter, agrees most experienced litigators involved in drinking and driving cases would first investigate where the defendant consumed the alcohol. "One of the first inquiries you make is where the person consumed the alcohol and if you can trace the consumption of the alcohol to a drinking establishment, then you will very often" include the bar in the lawsuit, says Kwinter. There's a well-established body of law that imposes a common law duty, as well as a statutory obligation in the Liquor Licence Act, requiring bars not to over-serve patrons, Oatley notes. "We do live in a society that I'm quite confident frowns generally on bars over-serving people and letting them drive." W LA YER M A N ZN ZN ZN ZINE AZ G INTO OUR SUCCESS CANA D I TAP ROOTED IN ONTARIO AN RESPECTED ACROSS CANADA WHY REFER TO SINGER KWINTER? Why don't we let the legal community tell you... I am a personal injury litigator for accident victims. For more than 20 years, I have referred some of my personal injury clients to the law firm of Singer Kwinter. In my opinion, Singer Kwinter is first class in its proven ability to represent personal injury accident victims at mediations and also in conducting trials. The results for the accident victims have been phenomenal due to the expertise of the lawyers at Singer Kwinter. – S.L.K. 1033 Bay Street, Suite 214 Toronto, ON M5S 3A5 1 866 285 6927 info@singerkwinter.com singerkwinter.com Untitled-1 1 The Liquor Licence Act prohibits bars from over-serving alcohol to anyone, and doing so constitutes a breach of the statute and the common law in the context of someone allowed to drink and drive, says Oatley, adding that "the case law is clear that servers are required to know" whether the person is drunk and is driving. "[Servers] are considered to be professionals and people with a special relationship with the people that they're serving. It's not an excuse for the server to say, 'I couldn't tell he was impaired.'" There have been attempts to include non-commercial social hosts in litigation arising from drinking and driving matters but they've been mostly unsuccessful. "If someone had dinner at a home and they got drunk, [the possibility of suing the host] was basically shut down by the Supreme Court of Canada in a case where the court has held as a policy decision that it's very, very difficult to hold social hosts liable," says Kwinter. The 2006 case, Childs v. Desormeaux, concluded that "hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest." But as far as commercial establishments go, third-party liability is part of their business, Kwinter notes. Once brought to court, they must "prove their system" of alcohol control and monitoring, he says. "There's an obligation not to over-serve and an obligation to monitor how much someone is having to drink. It's a really heavy obligation to put on an establishment but it's not an easy obligation to prove because you have to prove the establishment knew the person was leaving drunk or ought to have known. "If a person has had 15 drinks, it doesn't matter if they appeared drunk or not. You must know that they are drunk." When it comes to establishing the liability of establishments in impaired driving cases involving serious injuries, the courts have generally taken "a balanced approach," according to Oatley. "It is certainly easier [to prove liability] the more over the legal limit is the driver's blood alcohol level, but providing there's a reasonable body of evidence of intoxication, generally speaking there will be liability," he says. "If there has been a reasonable amount of alcohol consumed, if there's a temporal relationship between the consumption of alcohol and the accident, if there's evidence of intoxication and therefore over-serving, we always include the bars," he adds, noting these types of cases are "frequently" successful. A trial lawyer must also show the accident wouldn't have happened but for the alcohol consumption, Kwinter notes. In some cases where the blood alcohol level is "marginally high" and the customer didn't appear drunk, it becomes difficult for lawyers to establish liability. "But if the blood alcohol level is relatively high or there's good evidence of impairment, you'll probably succeed whether anyone could tell the driver was loaded or not," says Oatley. Typically, the percentage of fault found on a bar will be in the order of 15 per cent of the damages. And in cases where the verdict is for a large damage amount, the judgment can use up all of the bar's insurance, Oatley notes. In some instances, bars have had their liquor licences suspended for breach of duty. In a recent case, a Port Carling, Ont., club had its licence taken away for some time after three heavily intoxicated patrons drove away from its premises and got into a fatal accident that killed all of them. However, most cases involving establishments settle outside of court. In the MacDonald case, Oatley says he's in the process of completing the evidence. 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