FOR THE PURPOSES OF RIGHT TO SELF-DETERMINATION, HOW DOES ONE DEFINE PEOPLE IN CONTEXT OF KASHMIR


47 

The Denning Law Journal 2011 Vol 23 pp 47-64 

 

 

OF ADVOCATES, DRUNKS AND OTHER PLAYERS:  

PLAIN TALES FROM AUSTRALIA

 

 

The Hon Michael Kirby AC CMG


 

 
OF ADVOCATES 

 

When I retired from judicial office after 34 years service (13 of them as a 

Justice of the High Court of Australia), I was richly rewarded for my labours 

by the practising Bar.  Here in England, Inner Temple did me the honour of 

electing me a Bencher.  I was proud to follow Peter Taylor to that office.  In 

Australia, the Australian Bar Association, the Law Council of Australia and 

the governing body of my home Bar, the New South Wales Bar Association, 

conferred on me honorary life memberships.  I say this not to boast but to 

illustrate the forgiving qualities of barristers for the assaults that judges inflict 

on them during service in the courts.   

I inherited the post as President in the New South Wales Court of Appeal, 

the busiest full-time appellate court in Australia, from judges of high talent 

but sharp tongues who made appearing before them an often fearsome and 

stomach-churning experience.
1
  Like Lord Taylor of Gosforth, in whose 

honour this lecture is established, I came into the inner circle of the Bench and 

Bar from the outside.  I could never take pleasure in the discomfitures of 

barristers, where such conduct could redound to the disadvantage of their 

clients‟ arguments.  Yet in my case, there was a still recent reason why the 

Bar might have held a grudge against me.   

Traditionally, by the common law, a barrister in England and Australia, 

was immune from a suit in negligence, brought by a client, in respect of the 

barrister‟s professional performance in court.  So much had been upheld by 

                                                      
  Delivered at Inner Temple, London on March 22 2011 as the Peter Taylor Memorial 

Lecture in honour of the late Lord Taylor of Gosforth, Lord Chief Justice of England 

and Wales (1992-1997). 


  Justice of the High Court of Australia (1996-2009); Honorary Bencher, Inner 

Temple; Honorary Fellow, Society of Legal Scholars.  The author acknowledges the 

assistance of Michael Munk, University of Technology, Sydney, in assembling 

materials. 
1
  A J Brown “The „Inevitable‟ Judge” in I Freckleton and H Selby (eds) Appealing to 

the Future – Michael Kirby and his Legacy (Sydney: Thomson Reuters, 2009) p 49 at 

pp 62 and 67 (hereafter “Appealing”). 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

48 

the High Court of Australia in 1988 in its decision in Giannarelli v Wraith.
2
  

In 2005, the principle in that case was questioned when a client brought 

proceedings in the Supreme Court of Victoria against both his barrister and 

solicitor claiming that their conduct had been lacking in the exercise of 

reasonable skill, care and diligence, so as to render them each liable, in 

contract and tort, for monetary damages to the client. 

The case, D’Orta-Ekenaike v Victoria Legal Aid,
3
 took a very long time to 

present its important questions of legal authority, principle and policy to the 

nation‟s final court.  Ryan D‟Orta-Ekenaike had been charged in February 

1996 with rape.  In July of that year, following legal advice, he pleaded guilty.  

However, on arraignment, he changed his plea and stood trial in the County 

Court of Victoria.  At that trial, his plea of guilty was led in evidence and the 

accused was found guilty by the jury and sentenced to three years‟ 

imprisonment.  He applied to the Court of Appeal of Victoria for leave to 

appeal against his conviction.  That Court held that the instructions given by 

the trial judge on the use that the jury could make of the guilty plea were 

inadequate.  The conviction was quashed and a new trial was directed.  At the 

second trial, the judge ruled that the guilty plea at committal was inadmissible 

in the circumstances.  The jury found the accused not guilty and he was 

discharged. 

It was then that Mr. D‟Orta-Ekenaike brought his civil proceedings in the 

County Court of Victoria against Victoria Legal Aid (VLA), which had acted 

as his solicitor, and against the barrister who had appeared for him at the 

committal proceedings and in his first trial.  The pleadings alleged negligence, 

it being contended that both the barrister and the briefing officer of VLA had 

negligently advised him that he did not have a defence to the charge of rape; 

that if he pleaded guilty at the committal he would receive a suspended 

sentence; and that, if he did not plead guilty there, he would be convicted and 

would receive a custodial sentence.  This advice was said to have been given 

out of court, at a conference in chambers two days before the commencement 

of the committal hearing.  The advice was repeated on the day the hearing 

began, resulting in the guilty plea.  Neither the solicitor nor the barrister had 

warned the accused that, if he pleaded guilty and subsequently sought to 

reverse that plea, it could be relied on by the prosecutor in the trial as an 

admission of guilt.  The client relied on strong evidence that he was exposed 

to undue pressure and influence designed to induce him to plead guilty.   

Based on the legal principle of immunity from liability in respect of the 

allegations of negligence, invoked by the lawyers, the trial judge in the 

County Court (Judge Wodak) permanently stayed the civil damages 

proceedings.  He held that both VLA and the barrister were immune from 

                                                      
2
  (1988) 165 CLR 543. 

3
  [2005] HCA 12; (2005) 223 CLR 1; [2006] 1 LRC 168, AusHC. 



THE DENNING LAW JOURNAL 

 

 

49 

legal liability.  On this occasion, the Court of Appeal of Victoria refused leave 

to appeal from the trial judge‟s decision.  An application for special leave to 

appeal to the High Court of Australia was referred to be decided, as on the 

return of an appeal, by the Full Court of that Court.  This is where I became 

acquainted in the travails of Mr. D‟Orta-Ekenaike.   

The majority of the High Court of Australia (Chief Justice Gleeson and 

Justices McHugh, Gummow, Hayne, Callinan and Heydon) rejected the 

appeal.  They held that a legal practitioner, whether acting as an advocate or 

as a solicitor instructing an advocate, who gave advice leading to a decision at 

trial which affected the conduct of the trial, could not be sued in negligence 

on that account.  Specifically, the majority affirmed that there were powerful 

reasons for the Court to refuse to re-open its decision in Giannarelli.   

A factor relevant to that decision for four of the Justices (Chief Justice 

Gleeson and Justices Gummow, Hayne and Heydon in joint reasons) was that 

the Victorian Parliament had not proceeded to abolish the immunity enjoyed 

by barristers and solicitors, following the 1988 decision in Giannarelli.  The 

same Justices concluded that the advocate‟s immunity from suit resulted from 

the needs of the courts to provide finality to contests and to reinforce the 

central principle of the judicial system that controversies, once resolved, were 

not to be re-opened by collateral attack, except in a very few, narrowly 

defined, circumstances.   

The same members of the Court concluded that there were analogous 

instances where a wrong might occur but without a remedy, including, for 

example, the immunity from suit enjoyed by judges in respect of their 

performance of curial functions.  They held that, to permit negligence suits, 

would be to allow a second court to impugn the final decision of an earlier 

court, or to permit the re-litigation of matters earlier finally determined.  The 

also rejected an argument that a provision of the Legal Profession Practice 

Act 1958 (Vic) that stated that: 

 

“Every barrister shall be liable for negligence as a barrister to the 

client on whose behalf he has been employed to the same extent as a 

solicitor was on [a date in 1881]” 

 
cured any defects of the common law and indicated a legislative intention to 

establish actionable liability in barristers. 

I alone dissented from all of these holdings.  The result was a triumph for 

the principle of the immunity of the Bar in Australia, indeed, an extension of 

that immunity so that it would apply to solicitors as well.  It applied to 

conduct out of court, as well as to conduct under the special pressures of in-

court advocacy.  Champagne corks were heard popping in Phillip Street, 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

50 

Sydney and William Street, Melbourne where many barristers are housed, on 

the news of the High Court‟s decision in March 2005. 

In the argument of the D’Orta-Ekenaike case, the High Court of Australia 

had before it the then recent decision of the House of Lords in Arthur J S Hall 

& Co v Simmons.
4
  In that appeal, the House of Lords identified a number of 

developments in legal practice which, they concluded, justified a 

reconsideration, and ultimately abolition, of the immunity for advocates from 

suit.  The issues in the Australian case were broader and more complicated, 

because of the proceedings against the solicitor at the VLA, a statutory 

authority, and because of the history of 19
th
 century attempts in Victoria to 

amalgamate barristers and solicitors and to provide for equal liability in 

negligence.  Still, there were common issues in the two proceedings. 

The House of Lords was never formally part of the Australian judicature.  

Even Privy Council appeals had been terminated by the Australia Act 1986 

(Aust and UK).  Thus, their Lordships‟ decision in Arthur JS Hall did not 

bind the Australian courts.  Nevertheless, great respect is shown throughout 

the Commonwealth to decisions of final national courts.  A recent decision on 

a similar point in England was clearly the stimulus for undertaking the review 

of the Australian ruling in Giannarelli.  It was the source of the major 

arguments of legal principle and policy advanced by the appellant in the 

Australian case.  In particular, he latched on to the conclusion stated by Lord 

Steyn in Arthur JS Hall:  

 

“[O]n the information now available and developments since Rondel v 

Worsley,
5
 I am satisfied that in today‟s world that decision no longer 

correctly reflects public policy.”
 6
 

 

Whilst sweeping away the old immunity, as a relic of an exclusion from 

the rules applying to virtually all other professionals, some of the Law Lords 

in their speeches drew a distinction between collateral attacks on final 

judgments in civil and in criminal cases.
7
  Unanimously, the High Court of 

Australia was unconvinced that such a differentiation was conceptually viable.   

In my reasons, I was required to deal with the peculiar history of the 

common law rule in Victoria and the foregoing special statutory provision.  A 

dark hint in argument that the Law Lords in Arthur J S Hall had been forced 

to come to their conclusions because of the super-imposition upon the 

otherwise admirable reasoning of earlier English courts of alien concepts 

                                                      
4
  [2002] 1 AC 615. 

5
  [1969] 1 AC 191. 

6
  [2002] 1 AC 615 at 683. 

7
  [2002] 1 AC 615 at 622-625 per Lord Hope of Craighead; at 751-752 per Lord 

Hobhouse of Woodborough. 



THE DENNING LAW JOURNAL 

 

 

51 

contained in the European Convention of Human Rights.
8
  In fact, no mention 

at all had been made an argument of that instrument, a gap that I attributed to 

the non-application of the incorporating provisions of the Human Rights Act 

1998 (UK) at the time relevant to the proceedings in the Arthur JS Hall case.  

Yet most of my reasons were addressed to the so-called public policy 

arguments deployed by the majority in the Australian decision to claim the 

continuance, indeed expansion, of the immunity in Australia.   

Amongst other considerations, I referred to the expansion of the number 

of lawyers engaged in advocacy today (many of whom are not now 

barristers).  And the conceptual difficulty of providing the immunity for 

supposed reasons of instantaneous judgement within court rooms, yet denying 

it to the decisions expected of a surgeon or of a pilot of a large passenger 

aircraft.
9
  The fact that the High Court, far from cutting back on the 

exceptional immunity, was pushing it into new and unhistorical applications, 

merely demonstrated for me the lack of convincing reasons behind the Court‟s 

proposed ruling.  I am not, of course, questioning that ruling as it states the 

law of Australia.  I am explaining why I could not join in it.   

An undercurrent in the majority approach was a fear of floods of 

litigation, brought by discontented litigants against lawyers, which could not 

easily be repelled.  However, I sought to respond to that fear: 

 

“It does not happen in the United States, a most litigious country, 

where there has never been an immunity from suit for attorney 

advocates.
10

  It does not happen in Canada, where the courts have 

rejected such a general immunity.
11

  Instead, in that country, the courts 

have concentrated on developing special rules to recognise the 

practical problem that lawyers often face in conducting trials and 

giving legal advice.  The general unavailability of legal aid in 

Australia to support negligence claims against lawyers; the availability 

of summary relief against vexatious claims;
12

 and the rules against 

abuse of process by re-litigation
13

 (not to mention the empathy and 

understanding of judges for co-professionals in unmeritorious cases) 

                                                      
8
  (2005) 223 CLR 1 at 99 [315]. 

9
  223 CLR 1 at 101 [322]. 

10
  Ferri v Ackerman 444 US 193 (1979).  See Arthur JS Hall [2002] 1 AC 615 at 721, 

per Lord Hope of Craighead. 
11

  Garrant v Moskal [1985] 2 WWR 80 at 82, applying De Marco v Ungaro (1979) 

95 DLR (3d) 385; cf A Linden Canadian Tort Law (7
th

 Ed, 2001) p 151. 
12

  General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 

125 at 129-130.  See also Arthur JS Hall [2002] 1 ACT 615 at 691-692. 
13

  Arthur JS Hall [2002] 1 AC 615 at 703-704 per Lord Hoffmann. 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

52 

make it completely unnecessary to retain an absolute immunity of the 

broad, even growing, ambit propounded in this case.”
 14

 

 

In these remarks, I invoked the comment of Lord Hoffmann in Arthur JS 

Hall: 

 

“[The immunity] is burning down the house to roast the pig; using a 

broad-spectrum remedy where a more specific remedy without side 

effects can handle the problem equally well.”
15

 

 

To demonstrate the truth of Lord Hoffmann‟s dictum, I was also able to 

invoke the experience of litigation in Australia between the time that the trial 

judge had found the immunity unavailable to barristers in Victoria in 

Giannarelli, before that immunity was restored on appeal.  There was no 

objective evidence of any increase in the length of criminal trials in that 

interval
16

.  Similarly, in respect of the experience of England, I had available 

to me a report on what had happened following the Arthur JS Hall decision.
17

  

Only a handful of cases involving alleged negligence on the part of barristers 

had reportedly come to the courts.  In only two of them was the barrister 

found liable at law.  This led the commentator to conclude that the Arthur JS 

Hall decision: 

 

“... does not appear to have caused any great problems for the legal 

profession.  Indeed, the reaction of some in the profession is that it is 

to be welcomed, if it helps to restore public confidence in the 

openness and accountability of the profession.”
 18

 

 

To the argument of Justice Michael McHugh that the imposition of civil 

liability upon barristers would be “intolerable”, I suggested that this could not 

be a governing criterion, and was not so in the case of neurosurgeons, airline 

pilots or others who make extremely difficult and instantaneous professional 

decisions but were responsible in law for fleeting acts and omissions of 

carelessness.
19

  As to the appeal to the “undeniable public interest in the 

                                                      
14

  223 CLR 1 at 103 [328]. 
15

  [2002] 1 AC 615 at 703. 
16

  Law Reform Commission of Victoria Access to the Law: Accountability of the 

Legal Profession (Report No 48, 1992) pp 35-36 [78]. 
17

  J Senevieratne “The Rise and Fall of Advocates‟ Immunity” (2001) Legal Studies 

644 at 662. 
18

  Ibid, at 662, n 130. 
19

  (2005) 233 CLR 1 at 106 [336]. 



THE DENNING LAW JOURNAL 

 

 

53 

maintenance of the independent Bar”,
20

 I pointed out that such a Bar existed, 

and would continue to exist.  To suggest that in Australia, uniquely, the Bar 

would be destroyed by removing an anomalous out of court immunity for 

lawyers portrayed a lack of proper confidence in the survival capacity of the 

highly talented advocates found at the Australian Bar.  Australian barristers, 

and their instructing solicitors, I urged, were “made of sterner stuff.”
21

  

To the suggestion that the reforms should be left to Parliament, I invoked 

Lord Steyn‟s conclusion in Arthur JS Hall that judges had created the 

immunity and judges should say that the grounds for maintaining it no longer 

existed.
22

  The final reason for rejecting an enlargement of the immunity was 

that it amounted to according an anomalous, unjust and unclear exemption 

from legal liability to a particular class of citizens.  In a modern and 

egalitarian society, if that were to be done, it had to be done with the express 

authority of Parliament.  An extension of liability by judges was particularly 

unacceptable. 

Whilst my reasons on this issue stood alone and unloved in the Australian 

courts, it was a tiny consolation to me to observe, soon after, that the New 

Zealand courts,
23

 in a similar challenge, preferred my approach to that of the 

majority of the High Court of Australia.  The writing is on the wall for 

advocates‟ immunities.  It is far from impossible to imagine that even the 

immunity of judges for instances of deliberate abuse of office or of grossly 

negligent decisions may need to be re-visited:  not necessarily to burden the 

judges individually to recompense those who have suffered thereby, but to 

provide remedies for judicial decisions that are shown not to have been made 

bona fide and in the discharge of the judicial office.
24

   

 

OF DRUNKS 
 

If judges, barristers and solicitors are, on the whole, pillars of society and 

generally admired, or at least respected, for their learning, honesty and 

diligence in often stressful situations, the same qualities are not usually 

attributed to people who get intoxicated, and whilst intoxicated, suffer serious 

harm, even death.   

This is particularly so in the case of injecting drug users, as witness the 

great difficulty experienced in societies in persuading law makers to introduce 

schemes of sterile needle exchange, so as to reduce the spread of HIV and 

                                                      
20

  (2055) 223 CLR 1 at 39-40 [105]-[108]. 
21

  (2005) 233 CLR 1 at 106 [338]. 
22

  [2002] 1 AC 615 at 704-705. 
23

  Lai v Chamberlains [2006] NZSC 70; [2007] 4 LRC 79 (NZSupCt).  See ibid at 

[50], [55], [157], [203]. 
24

  Rajski v Powell (1987) 11 NSWLR 522 (CA). 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

54 

AIDS.  Despite the overwhelming evidence that such schemes radically 

reduce the levels of the virus in this cohort of the population, that reflects its 

general composition, getting sensible policies and reflecting those policies in 

law, is extremely difficult.
25

 

Even with intoxication caused by alcohol (a drug that is freely available 

(at least to adults), generally socially accepted and heavily advertised), an 

antipathy creeps into legal decisions, involving tort and statute law, so as to 

deny rights of recovery to the intoxicated where their condition is, in part at 

least, the result of conduct on the part of alcohol providers.  This fact was 

demonstrated in 2004 in a decision of the High Court of Australia on 

negligence liability, reached shortly before my retirement from the Court.  

The case was Cole v South Tweed Heads Rugby League Football Club Ltd.
26

   

On this occasion, the majority of the Court (Chief Justice Gleeson and 

Justices Gummow, Hayne and Callinan) concluded that, if the alcohol 

provider owed a duty of care, such duty had been discharged by what its 

employees had done in that case.  Two Justices (Chief Justice Gleeson and 

Justice Callinan) held that the provider did not owe a general duty to take 

reasonable care to protect patrons against the risk of physical injury from 

consuming alcohol.  Justice McHugh and I dissented.  We concluded that 

there was a duty of care in the circumstances; that it had been breached; and 

that the breach caused the damage suffered by the plaintiff. 

As is usual in cases of negligence litigation, whether involving 

professional negligence or otherwise, a detailed appreciation of the facts is 

essential to distinguish between those cases where a plaintiff succeeds and 

those where she fails. 

Tweed Heads is a pleasant seaside holiday resort town in New South 

Wales, just south of the Queensland border.  On a Sunday in June 1994, its 

rugby league football club offered a champagne (actually Spumante) breakfast 

free-of-charge to all comers.  Mrs Cole attended and proceeded to drink large 

quantities of the available sparkling wine.  Like other patrons, she moved 

from time to time between the drinking area and a vantage point where she 

could watch football games on the adjacent field.  Her drinking continued 

well into the afternoon.  Although by 12.30pm, Mrs Cole was clearly 

intoxicated, she was still sold a bottle of wine, and was variously described as 

                                                      
25

  See the experience of the United Nations Development Programme Global 

Commission on HIV and the Law, of which the author is a Commissioner.  The rates 

of HIV infection in injecting drug populations in New Zealand is 1% and in Australia 

2% (where such exchange systems operate).  It is 18% in Quebec and more than 30% 

in the United States (where such exchanges do not exist or are difficult to access).  It 

is much higher in other countries. 
26

  [2004] HCA 29; (2004) 217 CLR 469. 



THE DENNING LAW JOURNAL 

 

 

55 

“very joyous and happy” or “an embarrassment, totally inebriated.”
27

  By 

3.00pm, the wife of the manager of the club refused to sell her more alcohol 

because of her state of insobriety.  Still, she remained on the premises, and in 

the company of friends who, inferentially, were providing more alcohol to 

her.   

At about 5.30pm in the afternoon, the club manager asked Mrs Cole to 

leave on account of her drunken and indecent behaviour.  He offered her use 

of the club‟s courtesy bus or to call a taxi to take her home.  She rejected these 

offers.  Soon after, she left the club on foot in the company of two men, with 

one of whom the indecent public behaviour had occurred.  At 6.20pm, Mrs 

Cole suffered very serious injuries when she was run down by a motor vehicle 

on a public road near the club.  She sued the driver of the vehicle and the club, 

claiming negligence. 

At trial in the Supreme Court of New South Wales, the trial judge found 

against both defendants but concluded that there was contributory negligence 

on Mrs Cole‟s part.  He apportioned liability:  30% to each of the defendants 

and 40% to Mrs Cole.  The New South Wales Court of Appeal upheld 

appeals, set aside the judgment and dismissed Mrs Cole‟s action.
28

  Special 

leave to appeal to the High Court of Australia was granted by Chief Justice 

Gleeson and me.  However, the High Court, by majority, rejected the appeal. 

Once again, the case was a little complicated by the intervention of 

statutory law.  By the Registered Clubs Act 1976 (NSW), s 44A, it is an 

offence for a person in a registered club (like that at Tweed Heads) to supply 

liquor to an intoxicated person.  It was not argued that this criminal provision, 

of itself, gave rise to a civil cause of action.  But it was contended that the 

common law duty in negligence would mould itself to the stated 

parliamentary obligation.  This view was rejected by a majority of the High 

Court in what I suggested was a “withered view of community and legal 

neighbourhood propounded by” them.
29

   

In my opinion, the statutory provisions “shed light on the problems 

presented to the common law because they make plain the purpose of 

Parliament that intoxicated persons are not to be sold, or supplied with, 

alcohol on ... club premises.”
30

  Yet his had happened at 12.30pm when the 

evidence showed that Mrs Cole was already seriously affected by the free 

alcohol supplied to her earlier in the day.  The object of the common and 

statutory law was to prevent things coming to the inebriated circumstances 

that could lead to tragic outcomes, as they often do and as they did to Mrs 

Cole after 6.00pm.   

                                                      
27

  (2004) 217 CLR 469 at 474 [6]. 
28

  Cole v Lawrence (2001) 33 MVR 159. 
29

  (2004) 217 CLR 469 at 496 [93]. 
30

  (2004) 217 CLR 469 at 496 [94]. 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

56 

The majority of the High Court of Australia was understandably 

concerned to avoid imposing nanny-like duties on an alcohol outlet that would 

substitute for the freewill of the patrons, like Mrs Cole.  This was obviously a 

proper concern.  But expert evidence in the case, supported by commonsense 

and ordinary experience, showed the need for some firmness of action at an 

early, rather than later, stage in the deterioration of Mrs Cole‟s inhibitions and 

self-control.  One can understand the conclusions reached by the majority.  

However, it was my view that a higher standard was imposed by the law for 

all the Mrs Coles of this world, given the role that a national final court plays 

in expressing the common law requirements of neighbourliness:   

 

“The law of tort exists not only to provide remedies for injured 

persons where that is fair and reasonable and consonant with legal 

principle.  It also exists to set standards in society, to regulate wholly 

self-interested conduct and, so far as the law of negligence is 

concerned, to require the individual to act carefully in relation to a 

person who is in law a neighbour
31

.  The club had a commercial 

interest to supply alcohol to its members and their guests, including 

[Mrs Cole].  Doing so tended to attract them to an early-morning 

breakfast, to induce them to use profitable gambling facilities in the 

club‟s premises and to encourage them to use the restaurant and other 

outlets where alcohol would continue to be purchased or supplied to 

the profit of the club ... [T]he common law has long recognised that 

the occupier of premises owes a duty to take reasonable care for the 

safety of those who enter the premises.  That duty arises from the 

occupation of premises.  It extends to protection from injury from all 

of the activities of the premises, including, in registered premises such 

as the club‟s, the sale of alcoholic drinks.”
 32

 

 

Justice McHugh reached a similar conclusion.  However, our opinions did 

not carry the day.  Our references to standards that had been applied in earlier 

decisions in analogous cases in Australia and overseas were to no avail.  

Justice McHugh concluded his opinion with these words: 

 

“No doubt some minds may instinctively recoil at the idea that the 

Club should be liable for injuries sustained by a drunken patron who is 

run down after leaving its premises.  But once it is seen that the Club 

has a legal duty to prevent her drinking herself into a state where she 

was liable to suffer injury, the case wears a different complexion.  The 

                                                      
31

  Donoghue v Stevenson [1932] AC 562 at 580. 
32

  (2004) 217 CLR 469 at 494-5 [91]. 



THE DENNING LAW JOURNAL 

 

 

57 

Club has a legal responsibility for the injury.  Instinct must give way 

to the logic of the common law.”
33

 

 

The factors that weighed on my mind were similar.  According to the 

majority‟s analysis, there was no sanction upon the provider of alcohol to 

prevent or discourage it from plying a patron with alcohol (including free 

Spumante over several hours) and then taking only formal steps to provide for 

her return to her residence of safety.  There was no reinforcement of the 

parliamentary will to prohibit the licensee supplying further alcohol to the 

intoxicated.  Nothing was effectively done to diminish conduct that would 

reduce a decent citizen to public acts of indecency and personal gross 

inebriation.  Truly, the law washed its hands of responsibility.  It was my view 

that judges in a final court, at least, had to consider whether this was the 

standard of the law for the society they lived in.  However, Mrs Cole lost her 

case. 

A second case arose soon after my retirement from judicial office where 

the decision in Cole was applied in equally troubling circumstances:  CAL No 

14 Pty Ltd v Motor Accidents Insurance Board.
34

  In that case, a widow 

instituted proceedings in the Supreme Court of Tasmania.  She claimed 

damages as a result of the death of her husband, consequent upon injuries 

sustained by him when his motor cycle collided with a bridge whilst he was 

driving home.  The claim alleged negligence on the part of the proprietor and 

licensee of a hotel in Triabunna, a township in beautiful Tasmania.  The 

evidence at trial showed that the deceased arrived at the hotel at 5.00pm.  He 

began drinking beer and then spirits.  When a rumour circulated that a police 

breathalyser and speed camera had been set up nearby, it was suggested to 

him (and he agreed) that he put the motor cycle in a locked store and collect it 

the next day.  The licensee eventually did this and placed the keys to the 

motor cycle in the petty cash tin, out of reach of the deceased.  This was the 

normal receptacle for keys handed over by customers.   

The deceased then stayed on the premises for an additional hour drinking 

and gambling.  He left the premises between 7.45pm and 8.15pm.  However, 

he soon returned demanding access to the motor cycle.  The licensee offered 

to telephone his wife; but was rebuked:  “If I want you to ring my fuckin‟ 

wife, I‟d fuckin‟ ask you”.  The licensee alleged that he had asked the 

deceased three times whether he was fit to drive.  Being assured that he was, 

he provided the keys to the plant room and unlocked it.  The fatal accident 

took place at around 8.30pm.   

The trial judge (Justice Blow) rejected the claim of negligence.  However, 

this decision was reversed by a majority of the Full Court of the Supreme 

                                                      
33

  (2004) 217 CLR 469 at 485-6 [46]. 
34

  [2009] HCA 49; (2009) 239 CLR 390; [2010] 1 LRC 490. 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

58 

Court of Tasmania.
35

  By special leave, an appeal was brought to the High 

Court of Australia.  Justice McHugh and I having departed, that Court 

unanimously set aside the orders on appeal.  It restored the order of the trial 

judge, dismissing the action.  Specifically, the High Court concluded that the 

licensee did not owe any duties to the deceased to telephone his wife, in the 

circumstances disclosed, so that she could come and collect her husband.  

Alternatively, the majority of the judges concluded that, if there were any 

such duty to telephone the deceased‟s wife, the evidence did not support a 

conclusion that the accident would have been prevented by the hotelier‟s 

having done so. 

To some extent, the case in Tasmania was weaker than Mrs Cole‟s case.  

The period of drinking and the degree of intoxication appears, on the 

evidence, to have been less prolonged and extreme.  On the other hand, the 

significant (and certainly atypical) step by which the deceased had 

surrendered the keys of his motor cycle and consented to it being locked 

away, at least arguably, strengthened the claim of the widow.  Why would this 

course have been suggested, still more why would it have been agreed to, if 

there was not already a significant and obvious problem of intoxication 

recognised and accepted by supplier and patron alike?   

Having suggested, and agreed to, such precautions, was it a proper 

discharge of the duty of care to the deceased to hand over the keys and unlock 

the store simply because the patron demanded this course with a few ripe 

expletives?  Was not the very act of self-deprivation in the control of the 

motor cycle enough to alert the licensee to the particular risk that the alcohol 

he was supplying can sometimes bring?  This includes a diminution of the 

subject‟s self-perception and capacity of self-control by reason of the very 

product which the alcohol provider has a profit motive to keep supplying to 

the patron?   

Arguably, against that potential conflict of interest and duty, the 

communal sense of neighbourliness, reflected in the law of negligence, 

requires intervention by courts to set a social standard that alcohol providers 

will comply with (and can themselves blame and plead in excuse) before 

letting loose an intoxicated patron on the public roads.  Clearly, doing this 

involves a danger to the patron, but also to others, and to the community 

generally.  Here, it involved a distinct danger to the patron‟s family who 

suffered the loss of a breadwinner in consequence of the turning over the keys 

and unlocking the store, contrary to the very precaution that the patron and 

licensee had earlier agreed to. 

These comments do not, of course, alter the current state of the law in 

Australia.  That law is as stated by the High Court in Cole and in CAL No 14.  

But in today‟s world, we do not live only in our own jurisdictions.  Through 

                                                      
35

  Scott v CAL No 14 Pty Ltd [No 2] (2009) 17 TasR 331. 



THE DENNING LAW JOURNAL 

 

 

59 

the internet, CommLII, AustLII, BailII and that marvellous series The Law 

Reports of the Commonwealth,
36

 all judges, and especially judges of final 

national courts, have daily access to contemporaneous decisions on analogous 

problems decided in other English-speaking Commonwealth countries.   

In Canada, in 1974, in Jordan House Limited v Menow,
37

 a patron was 

ejected from a hotel where he had been served with beer from the late 

afternoon and evening until 10.00pm.  When he was then struck by a vehicle 

whilst walking home and sustained serious injuries, he sued and recovered 

damages at trial, affirmed on appeal to the Supreme Court of Canada.  Such 

damages were apportioned equally as between the plaintiff, the motor vehicle 

driver and the hotel.  The Supreme Court of Canada rejected a further appeal.  

The Justices concluded that a duty of care existed in the circumstances; and 

that it was enlivened, on the evidence, by the manifest intoxication of the 

plaintiff.   

A similar view was taken by the Supreme Court of Canada in 1995 in 

Stewart v Pettie.
38

  That was a case where a passenger was seriously injured 

when a car, driven by her brother, crashed after the brother had been 

continuously served alcohol by the outlet where he had been drinking 

throughout the evening.  The Supreme Court of Canada concluded that a duty 

of care existed on the part of alcohol-serving establishments towards their 

patrons because the latter were sometimes rendered unable to look after 

themselves once they become intoxicated.  Furthermore, the provider owed a 

duty not only to the patron but also to third parties who might be dependent 

on his skill as a driver.  Commercial vendors of alcohol were held 

“unquestionably” to owe a general duty of care to persons who could be 

expected to use the highways.  Injury to a passenger of the patron was 

therefore foreseeable.   

The Canadian court explained that the reluctance of courts to impose 

affirmative duties on persons for a failure to take positive action had been 

tempered where a “special relationship” existed between the parties that 

resulted in the imposition of a positive duty.  The Court reached the policy 

conclusion that such a “special relationship” existed at the least between the 

vendors of alcohol and the motoring public.  That duty was enlivened in the 

given case because nothing had been done to prevent or inhibit the driver.  He 

was simply let loose to drive his vehicle, to the danger of his passengers, 

including his sister, and other members of the public.  Against this danger, a 

higher standard of the common law of negligence applied.   

                                                      
36

  Law Reports of the Commonwealth, MD Kirby Foreword for 100
th

 Volume.  See 

[2009] 2 LRC iii. 
37

  [1974] SCR 239 (SCC). 
38

  [1995] 1 SCR 131 (SCC). 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

60 

A review of the cases in England
39

 and Australia,
40

 before the decisions in 

Cole and CAL No 14 shows a large preponderance of decisions upholding 

claims of negligence against alcohol outlets that continued to provide their 

product to patrons, to the point of intoxication and beyond, where they are 

known to be exposed to risks on the public highway.  However, in Australia, 

following the two recent decisions of the High Court, such authorities have 

been rendered dubious and it would certainly be very risky to place reliance 

on them.  In Australia, it seems, drinking alcohol is to be left to private 

assessment and responsibility despite that product‟s inhibiting features of self-

knowledge and willpower.  No encouragement is to be given by the common 

law of negligence to self-control on the part of the outlet or customer and 

control by the employees.  Freewill reigns.   

Is this a desirable result from a social point of view?  This is a question 

that inevitably final courts must ask themselves.  Perhaps it was my early 

years attending Methodist churches in Sydney, and there imbibing the culture 

of community responsibility for its vulnerable members, that made me 

approach such matters with a heightened sense of the law‟s duty to uphold 

community standards and neighbourly duties.   

A barrister or solicitor who can never be sued for conduct associated with 

advice to a client can substantially banish from his or her thinking the 

sanction of an unpleasant action even for egregious wrongs or the need to 

explain his conduct in an open court as well as to a public liability insurer.  

An alcohol outlet which is permitted, without legal sanction, to ply a 

vulnerable middle-aged woman with alcohol over six hours, or a motor cycle 

driver expressly recognised to need protection, over three hours, is removed 

from the irksome stimulus that civil liability at law can sometimes exert.  

Representatives of alcohol outlets then have little or no encouragement from 

the law to introduce rules of good practice controlling the amount of alcohol 

they serve to patrons over time; and the precautions (including perhaps 

notification to police) that they should observe, even where doing this might 

damage their commercial interests which are to turn a blind eye and to wash 

their hands of „other peoples‟ problems‟. 

 

OTHER PLAYERS 
 

                                                      
39

  Munro v Porthkerry Park Holiday Estates [1984] TLR 138. 
40

  Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Johns v Cosgrove 

(1997) 27 MVR 110; Rosser v Vintage Nominees Pty Ltd (1998) 20 SR(WA) 78; 

Desmond v Cullen (2001) 34 MVR 186.  In all of the foregoing cases, the plaintiff 

succeeded. 



THE DENNING LAW JOURNAL 

 

 

61 

The great difficulty with the influential speech of Lord Atkin in Donoghue 

v Stevenson
41

 was that it attempted to offer broad principles to guide 

negligence liability in a vast range of factual circumstances, in the place of the 

earlier categorisations of causes of action by reference to factual peculiarities.  

Every judge and every law student knows the famous passage I refer to.  It 

may be Delphic and even circular, as its critics suggest.  But it is seeking to 

express a broad principle based, ultimately, on notions of community ethics:   

 

“[I]n English law there must be and is some general conception of 

relations giving rise to a duty of care, of which the particular cases 

found in the books are but instances.  The liability for negligence, 

whether you style it as such or treat it as in other systems as a species 

of “culpa”, is no doubt based upon a general public sentiment of moral 

wrongdoing for which the offender must pay.  But acts or omissions 

which any moral code would censure cannot in a practical world be 

treated so as to give a right to every person injured by them to demand 

relief.  In this way, rules of law arise which limit the range of 

complainants and the extent of their remedy.  The rule that you are to 

love your neighbour becomes in law:  You must not injure your 

neighbour, and the lawyer‟s questions:  Who is my neighbour? 

receives a restricted reply.  You must take reasonable care to avoid 

acts or omissions which you can reasonable foresee would be likely to 

injure your neighbour.  Who then, in law, is my neighbour?  The 

answer seems to be persons who are so closely and directly affected 

by my act that I ought reasonably to have had them in contemplation 

as being so affected when I am directing my mind to the acts or 

omissions which are called in question.”
42

 

 

At the very end of his speech, Lord Atkin went on to say, in words that are 

rarely quoted: 

 

“[This] is a proposition that I venture to say no-one in Scotland or 

England who is not a lawyer would for one moment doubt.  It will be 

an advantage to make it clear that the law in this matter, as in most 

others, is in accordance with sound commonsense.”
43

 

 

So if the facts are overwhelmingly influential in the outcome of cases of 

negligence at common law, and if the scope of liability depends on a kind of 

moral equation, the obvious need in society is to cut the Gordian knot that is 

                                                      
41

  [1932] AC 562. 
42

  [1932] AC 562 at 580. 
43

  [1932] AC 562 at 586. 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

62 

presented by Lord Atkin‟s notion of close and direct affectation that 

reasonably engages the mind of those whose acts and omissions can otherwise 

cause harm to others, because they are closely and directly affected by the 

decisions that need to be made. 

In Australia, for some time, a test of “legal proximity” was adopted to 

control the finding of whether a duty of care in law should be upheld or 

denied
44

.  By the time I was appointed to the High Court of Australia, this 

theory of “proximity”, although still “in use”, was undergoing critical 

reappraisal, in England, Australia and elsewhere.  In England, Lord Oliver 

had thrown cold water on the notion in Caparo PLC v Dickman.
45

  In 

Australia, this fact eventually encouraged its abandonment in Sullivan v 

Moody.
46

  This was because a majority of the High Court of Australia had, by 

that stage, been assembled which considered that “proximity” was too open-

ended; that the imperial march of negligence had to be reversed; that costs of 

insurance were becoming excessive; and that plaintiffs‟ claims needed to be 

contained and rejected.   

In a series of decisions in the High Court of Australia,
47

 seeing the writing 

on the wall of these developments, I urged that the way to tame the tort of 

negligence – and to control its suggested excesses – was to adopt the three-

stage test for finding a duty of care expressed by Lord Bridge of Harwich in 

Caparo.
48

  This, in turn, was somewhat similar to an incremental approach 

earlier suggested by Justice Brennan in the High Court of Australia.  It 

requires examination of:  

 

(1) Whether it was reasonably foreseeable to the alleged tortfeaser that the 

particular conduct or omission would be likely to cause harm to a person such 

as the claimant;  

 

(2) Whether between that tortfeaser and the claimant, a relationship existed 

that would be characterised as one of proximity or neighbourhood; and  

 

                                                      
44

  See eg Jaensch v Coffey (1984) 155 CLR 549. 
45

  [1990) 2 AC 605 at 633.  Cf D Mendelson “Torts” (Chapter 32) in Appealing, 

above n 2, at 821. 
46

  (2001) 207 CLR 562. 
47

  Pyrenees Shire Council v Day (1998) 192 CLR 330 at 420-427 [246]-[253]; Romeo 

v Conservation Commission (NT) (1998) 192 CLR 431 at 476-477 [117]-[121], 484-

485 [138]-[140]; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 286-291 [289]-[302]; 

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 80-86 

[223]-[235; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 604-5 [241]. 
48

  [1990] AC 605 at 617-618. 



THE DENNING LAW JOURNAL 

 

 

63 

(3) If so, whether it was fair, just and reasonable that the law should impose a 

duty of a given scope upon that tortfeaser for the benefit of that person?
49

   

 

At the least, I hoped that this approach would provide a control over 

idiosyncratic narrowing of liability in negligence and oblige judges 

(especially in the final court) to address candidly the issues of public policy 

enlivened in every case by the third question.  Thus, in the cases I have 

examined, the public policy of imposing (or exempting from) liability for the 

provision of legal advice by advocates (alone of all professionals) and the 

public policy of effectively exempting alcohol providers from accepting and 

safeguarding patrons (some of whom will be extremely vulnerable) from the 

very consequences that the provision of alcohol for profit will occasionally 

cause is central.   

My quest ultimately came to nothing.  It was finally rejected in Australia 

in Sullivan v Moody.
50

 As more and more plaintiffs failed in proceedings in 

the High Court of Australia, I called attention to the pulling up of the 

drawbridge from the tradition of community responsibility and 

neighbourliness.  And the substitution of a “shift of legal policy, albeit one 

that is not usually spelt out and justified by judges as the Caparo approach 

would require.” 

In the place of “proximity”, or the Caparo enquiry into fairness, justice 

and reasonableness, the Australian law appears to have embraced a broad 

touchstone of “reasonableness” in determining when a duty of care will be 

imposed.
51

  In my last years in the High Court, I accepted the duty “for the 

time being” to conform to the majority opinion.
52

  However, I confessed that I 

did so with without enthusiasm or a conviction that a generalised search 

amongst the “salient features” of the facts of each case was a sensible 

substitute for a more principled, conceptual and candid approach to charting 

the metes and bounds of negligence liability. 

In coming to this conclusion, I was influenced not so much by the 

Methodists of my youth as by my service in my middle years in institutional 

law reform.  There, as Lord Scarman had taught, the role of lawyers was, at 

least partly, to forsake the pragmatic problem-solving, minimalist approaches 

of the common law – stumbling from one decision to the next.  Instead, it was 

to try to perceive each new problem in the context of the broad canvas of the 

law.  And always to ask how the answer to the particular case would advance 

                                                      
49

  Citing Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 623 [232]. 
50

  (2001) 207 CLR 562 at 579 [49]-[53]. 
51

  Neindorf v Junkovic (2005) 80 ALJR 341 at 356-347 [30]; (2006) 2 LRC 629, 

AusHC. 
52

  Graham Barclay Oysters (2002) 211 CLR 540 at 626 [238]. 



OF ADVOCATES, DRUNKS AND OTHER PLAYERS 

64 

desirable outcomes, not only for the parties, but for the community generally 

that must live with the judicial resolution of the parties‟ litigious conflict.   

All of which is to say little more than what that earlier judicial 

conceptualist, Lord Atkin, had remarked in Donoghue v Stevenson.  That each 

particular case must always be seen in our law as an instance of a broader 

genus.  That judges of final courts have an extra duty to search for, and 

express, the broader principles that should guide later and lower courts and 

ordinary citizens and their lawyers, as surely as statutes do.  And that, in the 

end, they should test their conclusions by the intuitive responses about the 

content of law that would be held by non-lawyer citizens applying sound 

commonsense to legal outcomes.
53

 

If this approach is followed in the two instances I have studied by 

reference to plain tales from Australia, I do not myself doubt the outcome that 

should be adopted.  Exceptional immunities from liability in negligence 

would be denied to, still less expanded for, lawyer advocates and their 

solicitors.  And effective immunity would equally be denied to alcohol outlets 

sheltering behind notions of freewill as they sell their product that has the 

inevitable effect of diminishing the very willpower in the consumers said to 

justify self responsibility.  The outcomes of each case would necessarily 

depend on the facts and circumstances accepted at trial.  The removal of 

accountability in negligence is intuitively wrong.  It is contrary to the 

neighbourhood principle as Lord Atkin expounded it.   

To the extent that the law concludes otherwise, it needs re-examination.  

And in the cyclical way of these things, such re-examination will one day 

come.  Lord Taylor‟s life journeyed marvellously on the cycle and he rose to 

become the Lord Chief Justice of England and Wales.  Too soon, he died.  

Those who are still on the journey have the responsibility to search for 

principle and justice; and to make sure, if possible, that these two great forces 

of the law coincide. 

 

 

                                                      
53

  See Travel Compensation Fund v Tambree (2005) 224 CLR 627 at 648 [64].