Stewart v. Pettie,  1 S.C.R. 131
Mayfield Investments Ltd., operating as the
Mayfield Inn Appellant
Gillian Stewart and Keith Stewart,
and Stuart David Pettie Respondents
Gillian Stewart and Keith Stewart Appellants
Mayfield Investments Ltd., operating
as the Mayfield Inn, and Stuart David Pettie Respondents
Indexed as: Stewart v. Pettie
File No.: 23739.
1994: October 13; 1995: January 26.
Present: La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Torts ‑‑ Negligence ‑‑ Duty of care ‑‑ Foreseeability ‑‑ Causation ‑‑ Commercial host serving alcoholic beverages ‑‑ Person served involved in car accident ‑‑ Passenger seriously injured ‑‑ Whether commercial host met standard of care required of a vendor of alcohol ‑‑ Whether commercial host negligent in failing to take any steps to ensure that the driver did not drive on leaving its premises ‑‑ Whether relaxed standard for proof of causation.
After an evening of dinner and live theatre at the Mayfield Inn, a passenger in a car driven by her brother was seriously injured when he crashed the vehicle after losing control on slippery road conditions. His driving had been appropriate to the conditions. The driver's blood alcohol level, however, was well above the legal limit an hour after the accident. He had been drinking throughout the evening and the commercial host was aware of his condition when he left in that the same waitress had served him all evening and had kept a running total of his tab. The passengers in the car had allowed the driver to drive, notwithstanding the availability of sober drivers in the party. In addition, the injured woman knew how much her brother had had to drink and how he reacted when intoxicated. No evidence was tendered as to what she or the other passengers would have done had the commercial host intervened.
The plaintiffs were unsuccessful at trial as against Mayfield Investments Ltd., but the trial judge awarded a provisional 10 percent against them in the event he was overturned on appeal and found the driver negligent, but not grossly negligent. The Court of Appeal allowed the appeal and found Mayfield negligent but did not otherwise disturb the trial judge's judgment. Mayfield Investments Ltd. appealed and the Stewarts cross-appealed the finding that the driver was not grossly negligent in his driving. At issue here was whether the commercial host met the standard of care required of a vendor of alcohol and whether it was negligent in failing to take any steps to ensure that the driver did not drive on leaving its premises. Two secondary issues, dealing with contributory negligence and gross negligence, did not arise.
Held: The appeal should be allowed; the cross-appeal should be dismissed.
A duty of care exists between alcohol‑serving establishments and their patrons who are unable to look after themselves after becoming intoxicated. The establishment may be required to prevent an intoxicated patron from driving where it is apparent that he or she intends to drive. A duty is also owed to third parties who might reasonably be expected to come into contact with the intoxicated patron, and to whom that patron may pose some risk. A sufficient degree of proximity existed here between the commercial host and the injured passenger giving rise to a duty of care between them. The fact that she was in the vehicle driven by the patron rather than the passenger or driver of another vehicle was irrelevant for purposes of duty of care. The duty of care arose because she was a member of a class of persons who could be expected to be on the highway. It is this class of persons to whom the duty is owed.
The question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct. The question of what conduct is required to satisfy the duty is a question of the appropriate standard of care. Commercial vendors of alcohol unquestionably owe a general duty of care to persons who can be expected to use the highways.
Liability here did not flow from the mere fact that the commercial host may have over‑served the patron. Injury to a class of persons must be foreseeable as a result of the impugned conduct. The mere fact that an individual is over‑imbibing does not necessarily lead, by itself, to any risk of harm to third parties. The commercial host will be required to take some action only if there is some foreseeable risk of harm to the patron or to a third party.
Notwithstanding legislation prohibiting the serving of alcohol to persons who are apparently intoxicated, no clear violation of liquor control legislation occurred here, given the fact that the patron was not exhibiting any signs of intoxication. Moreover, being in violation of legislation alone does not ground liability.
The reluctance of the courts to impose liability for a failure to take some positive action has been tempered where some "special relationship" between the parties warrants the imposition of a positive duty. Two questions must be answered: whether the defendant was required, in the circumstances, to take any positive steps at all, and if so, whether the steps taken discharged that burden.
The mere existence of a "special relationship" between vendors of alcohol and the motoring public, without more, does not necessarily permit the imposition of a positive obligation to act. Every person who enters a bar or restaurant is in an invitor‑invitee relationship with the establishment and is therefore in a "special relationship" with that establishment. The existence of this relationship does not preclude a commercial host from considering other relevant factors in determining whether in the circumstances positive steps are necessary. Although the circumstances will often warrant the imposition of a positive obligation to act, no action will be required in the absence of foreseeability which is the sine qua non of tortious liability.
The commercial host here took no steps to ensure its patron did not drive. None of its employees asked if the patron intended to drive or suggested any alternative. The fact that it remained "vigilant" and maintained "careful observation" of its patron could not be equated with taking positive steps. The circumstances, however, were not such that a reasonably prudent establishment would have foreseen that the patron would drive, and therefore should have taken steps to prevent this. The commercial host knew that some of the party were sober and could reasonably assume one of them would drive. It did not need to enquire as to who was driving.
The plaintiff in a tort action has the burden of proving each of the elements of the claim on the balance of probabilities, including proving that the defendant's impugned conduct actually caused the loss complained of. An evidentiary gap exists here because no evidence was tendered as to whether the sober passengers would have come to the same or a different conclusion had the commercial host intervened in some way. Nothing unusual or difficult exists here to bring into play the rule allowing for a less onerous proof of causation because of some inherent difficulty in proving causation. Indeed, it was the injured person who could have provided this information and did not. The inference, which was not negated by evidence led, is that her decision would have been no different even if she had been informed by the commercial host of all the circumstances.
Considered: Jordan House Ltd. v. Menow,  S.C.R. 239; Crocker v. Sundance Northwest Resorts Ltd.,  1 S.C.R. 1186; City of Kamloops v. Nielsen,  2 S.C.R. 2; Sambell v. Hudago Enterprises Ltd.,  O.J. No. 2494 (QL); Hague v. Billings (1989), 48 C.C.L.T. 192 (Ont. H.C.), aff'd in part (1993), 13 O.R. (3d) 298 (C.A.); referred to: Schmidt v. Sharpe (1983), 27 C.C.L.T. 1; Canada Trust Co. v. Porter (1980), 2 A.C.W.S. (2d) 428; Gibbons v. Yates, Ont. Co. Ct., June 17, 1982, unreported; Anns v. Merton London Borough Council,  A.C. 728; Just v. British Columbia,  2 S.C.R. 1228; Hall v. Hebert,  2 S.C.R. 159; Donoghue v. Stevenson,  A.C. 562; The Queen in right of Canada v. Saskatchewan Wheat Pool,  1 S.C.R. 205; Arland v. Taylor,  O.R. 131; Gouge v. Three Top Investment Holdings Inc.,  O.J. No. 751 (QL); Snell v. Farrell,  2 S.C.R. 311.
Statutes and Regulations Cited
Contributory Negligence Act, R.S.A. 1980, c. C‑23.
Highway Traffic Act, R.S.A. 1980, c. H‑7.
Liquor Licence Act, R.S.O. 1980, c. 244, s. 53.
Fleming, John G. The Law of Torts, 8th ed. Sydney: Law Book Co., 1992.
APPEAL and CROSS-APPEAL from a judgment of the Alberta Court of Appeal (1993), 141 A.R. 4, 46 W.A.C. 4, 10 Alta. L.R. (3d) 113,  7 W.W.R. 320, 16 C.C.L.T. (2d) 197, 44 M.V.R. (2d) 165, allowing in part an appeal from a judgment of Agrios J. (1991), 2 Alta. L.R. (3d) 97,  4 W.W.R. 532. Appeal allowed; cross-appeal dismissed.
Daniel W. Hagg, Q.C., and Allan A. Greber, for the appellant/cross-respondent Mayfield Investments Ltd.
J. Philip Warner, Q.C., and Doris I. Wilson, for the respondents/cross‑appellants Gillian Stewart and Keith Stewart.
Written submission only by Peter R. Chomicki, Q.C., for the respondent/cross-respondent Stuart David Pettie.
The judgment of the Court was delivered by
1 Major J. -- On December 8, 1985, Gillian Stewart, her husband Keith Stewart, her brother Stuart Pettie, and his wife Shelley Pettie went to the Stage West, a dinner theatre in Edmonton for an evening of dinner and live theatre. Before the evening was finished tragedy had struck. After leaving Stage West at the conclusion of the evening a minor single vehicle accident left Gillian Stewart a quadriplegic. Among others, she sued Mayfield Investments Ltd. (Mayfield), the owner of Stage West claiming contribution for her injuries. This appeal is to decide whether on the facts of this case the principles of commercial host liability, first established by this Court in Jordan House Ltd. v. Menow,  S.C.R. 239, apply to impose liability on Mayfield.
I. The Facts
2 Gillian Stewart and her sister-in-law, Shelley Pettie, were both employed by Dispensaries Limited. For its 1985 Christmas party, Dispensaries Limited paid the price of admission for its employees and their spouses and friends to attend a performance at Stage West, a dinner theatre operated in Edmonton by the appellant, Mayfield Investments Ltd., and located at the Mayfield Inn. The admission price included the dinner and performance, but did not include the cost of alcohol consumed.
3 The two sisters-in-law, with their husbands, went to the dinner theatre together in Stuart Pettie's car, with Stuart Pettie driving. They arrived at the dinner theatre around 6:00 p.m., and were seated by a hostess at a table which they selected from a group of tables which had been set aside for the approximately 60 people in the Dispensaries Limited group.
4 The dinner theatre was organized with a full buffet dinner to be followed at 7:45 p.m. by a three-act play. In addition, cocktail waitresses provided table service of alcohol. The Stewart and Pettie table was served by the same waitress all evening, and she kept a running total of all alcohol ordered, which she then presented at the end of the evening for payment. Waitresses would take drink orders during dinner and before the play started, and would also take drink orders during the two intermissions. No orders were taken while the play was in progress.
5 Stuart Pettie and Keith Stewart each ordered several drinks over the course of the evening, ordering the first drinks before dinner, and, in addition, ordering drinks after dinner but before Act I, and then during each of the two intermissions. Their wives, on the other hand, had no alcohol during the entire evening. They were present at the table during the entire course of the evening, while the drinks were ordered, served, and consumed. Gillian Stewart's testimony was clear that she knew, at least in general terms, the amount that Stuart Pettie had to drink during the evening.
6 Stuart Pettie was drinking "double" rum and cokes throughout the evening. The trial judge found that he drank five to seven of these drinks, or 10 to 14 ounces of liquor. The trial judge also found that despite the amount that he had to drink, Stuart Pettie exhibited no signs of intoxication. This appearance was deceiving, however, as he was intoxicated by the end of the evening.
7 The group left the dinner theatre around 11:00 p.m. Once out in the parking lot, they had a discussion amongst themselves about whether or not Stuart Pettie was fit to drive, given the fact that he had been drinking. Neither his wife, nor his sister (who acknowledged that she knew what her brother was like when he was drunk), had any concerns about letting Stuart Pettie drive. All four therefore got into the car and started home, with Stuart Pettie driving, Keith Stewart in the front passenger seat, and their spouses in the back seat.
8 That particular December night in Edmonton there was a frost which made the roads unusually slippery. The trial judge found that Pettie was driving slower than the speed limit (50 km/h in a 60 km/h zone), and also accepted the evidence of Gillian Stewart that he was driving properly, safely and cautiously in the circumstances. Despite his caution, Stuart Pettie suddenly lost momentary control of the vehicle. The car swerved to the right, hopped the curb, and struck a light pole and noise abatement wall which ran alongside the road. Three of the four persons in the vehicle suffered no serious injuries. Gillian Stewart, however, who was not wearing a seat belt, was thrown across the car, struck her head, and was rendered a quadriplegic.
9 The expert testimony at trial was that had she been wearing her seat belt (which was not required in Alberta in 1985) her injuries would have been prevented.
10 About an hour after the accident, Stuart Pettie registered blood alcohol readings of .190 and .200. The trial judge found that, while it is not clear what his blood alcohol reading would have been at the time of the accident, he was, without a doubt, intoxicated, and that his blood alcohol content would have been certainly over .1.
11 The Stewarts brought an action against Stuart Pettie, Mayfield, and the City of Edmonton. The action as against Stuart Pettie was settled, with Stuart Pettie admitting gross negligence (as was necessary under then-existing legislation covering gratuitous passengers). The action as against the City of Edmonton was settled prior to trial. The plaintiffs were unsuccessful at trial as against Mayfield Investments Ltd., but the trial judge awarded a provisional 10 percent against them in the event he was overturned on appeal. He also assessed 25 percent against Gillian Stewart for contributory negligence for failing to wear her seat belt. Finally, the trial judge found that Pettie's driving, while negligent, was not grossly negligent.
12 The Court of Appeal allowed the appeal and found that Mayfield was negligent. They did not, however, disturb the trial judge's apportionment, or his finding on the contributory negligence or gross negligence issues. Mayfield Investments Ltd. sought and was granted leave to appeal to this Court, and the Stewarts sought and were granted leave to cross-appeal the finding that Stuart Pettie was not grossly negligent in this driving.
II. The Courts Below
Alberta Court of Queen's Bench (1991), 2 Alta. L.R. (3d) 97
13 Agrios J. found no liability on the part of Mayfield. He said that, in order for Mayfield to be liable, there would have to be some combination of circumstances such as visible intoxication and knowledge that Pettie was going to drive. Here, Pettie was not obviously intoxicated, and, even if he was, he was in the company of a sober wife and sister, who were fully aware of the circumstances. If they were not concerned, it is unreasonable to expect that Mayfield should have been. Therefore, Mayfield was under no obligation to intervene.
14 Agrios J. then found that Pettie was not grossly negligent in his driving, and assessed Gillian Stewart's contributory negligence for failing to wear her seat belt at 25 percent.
Alberta Court of Appeal (1993), 10 Alta. L.R. (3d) 113
15 Writing for herself and Irving J.A., Hetherington J.A. said that the waitress should have known Pettie was becoming intoxicated, since she knew how much he had to drink. The waitress should also have known that he might leave by car, but she made no inquiries about whether he planned to drive. Mayfield breached two duties of care by serving Pettie past the point of intoxication and then by failing to take any steps to ensure that no harm came to third parties. Hetherington J.A. said that the presence of a sober wife and sister did not affect the foreseeability of the fact that Pettie might drive.
16 Kerans J.A., writing a separate concurring judgment, said that the judge erred in finding that Pettie had been placed in the care of his sober wife and sister. The fact that Pettie was sitting with sober people is irrelevant without inquiries being made as to the relationship between them. The server ought to have known that Pettie was intoxicated and that there was a risk that he might cause harm to third parties as a result. There was a foreseeable risk that Pettie might drive, and no inquiries were made to check this. The presence of the two sober people cannot relieve Mayfield of liability, since there was no evidence that Mayfield knew they had all come together in the same vehicle. Had intervention been made, it likely would have been effective to deter Stuart Pettie from driving.
17 Finally, in supplemental reasons, the Court of Appeal declined to interfere with the trial judge's finding that Stuart Pettie was not grossly negligent, or with his apportionment of liability.
18 There was one main issue argued and two secondary issues. The main issue is:
1. Did Mayfield Investments Ltd. meet the standard of care required of a vendor of alcohol, or was it negligent in failing to take any steps to ensure that Stuart Pettie did not drive after leaving Stage West?
19 The two secondary issues, which arise only if the appeal is dismissed, are:
2.Did the Trial Judge and the Court of Appeal make a proper determination and assessment on the Plaintiff's contributory negligence?
3.Did the Trial Judge err in finding that Stuart Pettie was not grossly negligent? This question is necessitated by the legislative provisions of the Alberta Highway Traffic Act, R.S.A. 1980, c. H-7, and the Alberta Contributory Negligence Act, R.S.A. 1980, c. C-23, as they existed at the time of the accident.
1.Was Mayfield Investments Ltd. negligent in failing to take any steps to ensure that Stuart Pettie did not drive after leaving Stage West?
20 This Court has not previously considered a case involving the liability of a commercial host where the plaintiff was not the person who became inebriated in the defendant's establishment. In both Jordan House Ltd. v. Menow, supra, and Crocker v. Sundance Northwest Resorts Ltd.,  1 S.C.R. 1186, it was the plaintiff who became drunk and as a consequence was unable to look after himself.
21 There are a number of lower court decisions in which commercial establishments have been found liable to third parties injured by a patron who had become inebriated in their establishment. See Schmidt v. Sharpe (1983), 27 C.C.L.T. 1 (Ont. H.C.); Canada Trust Co. v. Porter (1980), 2 A.C.W.S. (2d) 428 (Ont. C.A.); Gibbons v. Yates, Ont. Co. Ct., June 17, 1982, unreported; Sambell v. Hudago Enterprises Ltd.,  O.J. No. 2494 (Ont. Ct. (Gen. Div.)) (QL); and Hague v. Billings (1989), 48 C.C.L.T. 192 (Ont. H.C.), aff'd in part (1993), 13 O.R. (3d) 298 (C.A.).
22 The present appeal is one in which a third party is claiming against the commercial host. This raises the question of whether the establishment owed any duty of care to that third party. If a duty of care is found to exist, then it is necessary to consider what standard of care was necessary and whether that standard was met.
23 Another consideration is whether there was a causal connection between the defendant's allegedly negligent conduct and the damage suffered by the plaintiff.
A. Duty of Care
24 The "modern" approach to determining the existence of a duty of care is that established by the House of Lords in Anns v. Merton London Borough Council,  A.C. 728, and adopted by this Court in City of Kamloops v. Nielsen,  2 S.C.R. 2, at pp. 10-11. This test, as established by Wilson J. in Kamloops, paraphrasing Anns is:
(1)is there a sufficiently close relationship between the parties . . . so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,
(2)are there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?
25 This approach has been approved in Just v. British Columbia,  2 S.C.R. 1228, and Hall v. Hebert,  2 S.C.R. 159. The basis of the test is the historic case of Donoghue v. Stevenson,  A.C. 562, which established the "neighbour principle": that actors owe a duty of care to those whom they ought reasonably have in contemplation as being at risk when they act.
26 In Jordan House Ltd. v. Menow, supra, it was established that a duty of care exists between alcohol-serving establishments and their patrons who become intoxicated, with the result that they were unable to look after themselves. The plaintiff, who was a well-known patron of that bar, became intoxicated and began annoying customers. He was ejected from the bar, even though the waiters and employees of the bar knew that, in order to get home, he would have to walk along a busy highway. While doing so, he was struck by a car. Laskin J. (as he then was) said that the bar owed a duty of care to Menow not to place him in a situation where he was at risk of injury. He said (at pp. 247-48):
If the hotel's only involvement was the supplying of the beer consumed by Menow, it would be difficult to support the imposition of common law liability upon it for injuries suffered by Menow after being shown the door of the hotel and after leaving the hotel. . . . The hotel, however, was not in the position of persons in general who see an intoxicated person who appears to be unable to control his steps. It was in an invitor-invitee relationship with Menow as one of its patrons, and it was aware, through its employees, of his intoxicated condition, a condition which, on the findings of the trial judge, it fed in violation of applicable liquor licence and liquor control legislation. There was a probable risk of personal injury to Menow if he was turned out of the hotel to proceed on foot on a much-travelled highway passing in front of the hotel.
There is, in my opinion, nothing unreasonable in calling upon the hotel in such circumstances to take care to see that Menow is not exposed to injury because of his intoxication.
27 Laskin J. held that the hotel had breached the duty owed to Menow by turning him out of the hotel in circumstances in which they knew that he would have to walk along the highway. The risk to Menow that the hotel's actions created was foreseeable. The hotel was therefore found to be liable for one-third of Menow's injuries.
28 It is a logical step to move from finding that a duty of care is owed to patrons of the bar to finding that a duty is also owed to third parties who might reasonably be expected to come into contact with the patron, and to whom the patron may pose some risk. It is clear that a bar owes a duty of care to patrons, and as a result, may be required to prevent an intoxicated patron from driving where it is apparent that he intends to drive. Equally such a duty is owed, in that situation, to third parties who may be using the highways. In fact, it is the same problem which creates the risk to the third parties as creates the risk to the patron. If the patron drives while intoxicated and is involved in an accident, it is only chance which results in the patron being injured rather than a third party. The risk to third parties from the patron's intoxicated driving is real and foreseeable.
29 In this case, there was a sufficient degree of proximity between Mayfield Investments Ltd. and Gillian Stewart that a duty of care existed between them. The more difficult question is what was the standard of care and whether or not it was breached.
30 Before moving to the standard of care test, two points deserve comment. In so far as the existence of a duty of care is concerned it is irrelevant that Gillian Stewart was a passenger in the vehicle driven by the patron rather than the passenger or driver of another vehicle, other than for ancillary purposes such as contributory negligence. The duty of care arises because Gillian Stewart was a member of a class of persons who could be expected to be on the highway. It is this class of persons to whom the duty is owed.
31 On the second point, the respondents argue that Mayfield Investments Ltd. owed two duties of care to Gillian Stewart: first, not to serve Stuart Pettie past the point of intoxication, and second, having served him past the point of intoxication, to take positive steps to ensure that he did not drive a car. The respondents say that Mayfield breached both duties, and therefore should be liable to Gillian Stewart for her injuries.
32 I believe this argument confuses the existence of the duty of care with the standard of care required of Mayfield. The question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct. The question of what conduct is required to satisfy the duty is a question of the appropriate standard of care. The point is made by Fleming in his book The Law of Torts (8th ed. 1992), at pp. 105-6:
The general standard of conduct required by law is a necessary complement of the legal concept of "duty". There is not only the question "Did the defendant owe a duty to be careful?" but also "What precisely was required of him to discharge it?" Indeed, it is not uncommon to encounter formulations of the standard of care in terms of "duty", as when it is asserted that a motorist is under a duty to keep a proper lookout or give a turn signal. But this method of expression is best avoided. In the first place, the duty issue is already sufficiently complex without fragmenting it further to cover an endless series of details of conduct. "Duty" is more appropriately reserved for the problem of whether the relation between the parties (like manufacturer and consumer or occupier and trespasser) warrants the imposition upon one of an obligation of care for the benefit of the other, and it is more convenient to deal with individual conduct in terms of the legal standard of what is required to meet that obligation. Secondly, it is apt to obscure the division of functions between judge and jury. It is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant's conduct; it is for the jury to translate the general into a particular standard suitable for the case in hand and to decide whether that standard has been attained.
33 There is no question that commercial vendors of alcohol owe a general duty of care to persons who can be expected to use the highways. To paraphrase Wilson J. in City of Kamloops v. Nielsen, it clearly ought to be in the reasonable contemplation of such people that carelessness on their part might cause injury to such third parties. It remains to determine what standard of care is necessary to discharge the duty.
B. Standard of Care
34 Laskin J. said in Jordan House Ltd. v. Menow, supra, at p. 247, "The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another." The respondents argued, and the Court of Appeal agreed, that Mayfield was negligent because they (a) served Stuart Pettie past the point of intoxication, and (b) failed to take any steps to prevent harm from coming to himself or a third person once he was intoxicated.
35 I doubt that any liability can flow from the mere fact that Mayfield may have over‑served Pettie. To hold that over‑serving Pettie per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. I fail to see how the mere fact that an individual is over-imbibing can lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that Mayfield and others in their position will be required to take some action. This standard of care is the second "duty" identified by the respondents and the Court of Appeal.
36 It is true that applicable liquor control legislation in Alberta, and across the country, prohibits serving alcohol to persons who are apparently intoxicated. Counsel for the respondents pressed that point in argument. There are, however, two problems with this argument. The first is that it is not clear that there was any violation of liquor control legislation in this case, given the fact that Pettie was apparently not exhibiting any signs of intoxication. Moreover, even if it could be said that Mayfield was in violation of legislation, this fact alone does not ground liability: The Queen in right of Canada v. Saskatchewan Wheat Pool,  1 S.C.R. 205. Without a reasonably foreseeable risk of harm to him or a third party, the fact of over‑serving Pettie is an innocuous act. Therefore, liability on the part of Mayfield, if it is to be found, must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk to Gillian Stewart.
37 Historically, the courts have been reluctant to impose liability for a failure by an individual to take some positive action. This reluctance has been tempered in recent years where the relationship between the parties is such that the imposition of such an obligation has been warranted. In those cases, there has been some "special relationship" between the parties warranting the imposition of a positive duty. Jordan House Ltd. v. Menow, supra, was such a case.
38 A similar positive obligation was found to exist in Crocker v. Sundance Northwest Resorts Ltd., supra. The plaintiff entered a "tubing" competition put on by the defendant ski-hill. Before the race, the plaintiff became drunk in the ski-hill's bar, and by the time he was to race, was visibly intoxicated. The organizers of the race suggested that he not compete, but permitted him to do so nevertheless. As a result, he was thrown from his tube, and rendered a quadriplegic.
39 In finding liability on the part of the owner Sundance, Wilson J. noted that courts have increasingly required a duty to act where there is a "special relationship" between the parties. Canadian courts have been willing to expand the kinds of relationships to which a positive duty to act attaches. Wilson J. reviewed cases where the courts will require a positive action on the part of the defendant, and said at p. 1197:
The common thread running through these cases is that one is under a duty not to place another person in a position where it is foreseeable that the person could suffer injury.
40 Wilson J. said that, given the fact that the activity was under Sundance's full control and was promoted by it for commercial gain, Sundance was under a positive obligation as the promoter of a dangerous sport to take all reasonable steps to prevent a visibly incapacitated person from participating. She concluded that these precautions were not taken.
41 It is apparent from Wilson J.'s reasoning that there are two questions to be answered. The first is whether the defendant was required, in the circumstances, to take any positive steps at all. If this is answered in the affirmative, the next question is whether the steps taken by the defendants were sufficient to discharge the burden placed on them.
42 There is no dispute that neither the appellant nor anyone on its behalf took any steps to ensure that Stuart Pettie did not drive. Mayfield suggested that they remained "vigilant" and maintained "careful observation" of Stuart Pettie, and that this should be sufficient. However, remaining "vigilant" is not the same as taking positive steps, and it is common ground that none of Mayfield's employees made inquires about whether Stuart Pettie intended to drive or suggested any alternative. Therefore, if Mayfield is to avoid liability, it will have to be on the basis that, on the facts of this case, Mayfield had no obligation to take any positive steps to ensure that Stuart Pettie did not drive.
43 As mentioned, there are lower court decisions which hold that a special relationship exists between beverage rooms and members of the motoring public. In the result they will be liable to an injured third party for failing to take adequate steps to prevent an intoxicated patron from driving. In Hague v. Billings, supra, a highly intoxicated driver visited two different bars before becoming involved in an accident in which one person was killed and another seriously injured. After the first bar had refused to serve him more than one beer because he was obviously intoxicated, he went to the second bar. The second bar continued to serve the driver even though he was clearly intoxicated. They also failed to make any attempt to learn if, on leaving he planned to drive.
44 The trial judge followed the Ontario Court of Appeal's earlier decision in Canada Trust Co. v. Porter, supra, which held that the duty prescribed in s. 53 of the Liquor Licence Act, R.S.O. 1980, c. 244, and the common law duty were co-extensive. This section provided a statutory cause of action against a vendor of alcohol for injury or damage caused by a patron who became intoxicated in that establishment. The trial judge in Hague v. Billings found no liability on the part of the first bar, since they refused to serve the driver after discovering that he was intoxicated. The second bar was held to be liable, as they had not stopped serving the driver, even though he was obviously intoxicated. In addition they made no attempt to discover whether he planned to drive, even though the bar was located on a highway and the only practical way to get there was to drive. While the apportionment of liability was varied, this decision was affirmed on appeal.
45 Similarly, in Sambell v. Hudago Enterprises Ltd., supra, the driver became drunk in the defendant's bar, and injured a passenger in his vehicle. As in Porter, supra, the trial judge in Sambell held that s. 53 of the Ontario Liquor Licence Act provides a statutory action against bars for people injured as a result of a patron of the bar becoming drunk. He also held that there was a parallel liability at common law (per Gautreau J.):
I feel that they are liable both under the Liquor License Act and at common law. There is a high standard of care imposed on a tavern and its staff. The Squire Tavern people were oblivious to their duty. They knew these people were driving. They knew or should have known that they were intoxicated. They added to the level of intoxication by serving them more. I think that the standard maintained by the Squire was too low. Drinks would only be refused if the person was "too loud, starting arguments, knocking over drinks or falling down". It appears that the key to the instructions given to the waitresses was whether the patron was creating problems for the staff or upsetting other patrons. This is not enough.
The law is clear that at common law a tavern owner also owes a duty to take positive action to protect patrons and others from the dangers of intoxication.
46 The decisions of the Ontario Courts in this area may have been influenced by the existence of provincial legislation. The case at bar, being from Alberta must in the absence of comparable legislation, be decided on the common law.
47 There is little difficulty with the proposition, supported by the above cases, that the necessary "special relationship" exists between vendors of alcohol and the motoring public. This is no more than a restatement of the fact, already mentioned, that a general duty of care exists between establishments in Mayfield's position and persons using the highways.
48 I do, however, have difficulty accepting the proposition that the mere existence of this "special relationship", without more, permits the imposition of a positive obligation to act. Every person who enters a bar or restaurant is in an invitor-invitee relationship with the establishment, and is therefore in a "special relationship" with that establishment. However, it does not make sense to suggest that, simply as a result of this relationship, a commercial host cannot consider other relevant factors in determining whether in the circumstances positive steps are necessary.
49 The existence of this "special relationship" will frequently warrant the imposition of a positive obligation to act, but the sine qua non of tortious liability remains the foreseeability of the risk. Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship. The respondents argue that Mayfield should have taken positive action, even though Mayfield knew that the driver was with three other people, two of whom were sober, and it was reasonable to infer from all of the circumstances that the group was travelling together.
50 One of the primary purposes of negligence law is to enforce reasonable standards of conduct so as to prevent the creation of reasonably foreseeable risks. In this way, tort law serves as a disincentive to risk-creating behaviour. To impose liability even where the risk which materialized was not reasonably foreseeable is to lay a portion of the loss at the feet of a party who has, in the circumstances, acted reasonably. Tort law does not require the wisdom of Solomon. All it requires is that people act reasonably in the circumstances. The "reasonable person" of negligence law was described by Laidlaw J.A. in this way in Arland v. Taylor,  O.R. 131 (C.A.), at p. 142:
He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard "adopted in the community by persons of ordinary intelligence and prudence."
51 Obviously, the fact that tragedy has befallen Gillian Stewart cannot, in itself, lead to a finding of liability on the part of Mayfield. The question is whether, before 11:00 p.m. on December 8, 1985, the circumstances were such that a reasonably prudent establishment should have foreseen that Stuart Pettie would drive, and therefore should have taken steps to prevent this.
52 I agree with the Court of Appeal that Mayfield cannot escape liability simply because Stuart Pettie was apparently not exhibiting any visible signs of intoxication. The waitress kept a running tab, and knew that Pettie had consumed 10 to 14 ounces of alcohol over a five-hour period. On the basis of this knowledge alone, she either knew or should have known that Pettie was becoming intoxicated, and this is so whether or not he was exhibiting visible symptoms.
53 However, I disagree with the Court of Appeal that the presence of the two sober women at the table cannot act to relieve Mayfield of liability. Laskin J. in Jordan House Ltd. v. Menow, supra, made it clear that the hotel's duty to Menow in that case could have been discharged by making sure "that he got home safely by taking him under its charge or putting him under the charge of a responsible person . . ." (p. 249, emphasis added). Had Pettie been alone and intoxicated, Mayfield could have discharged its duty as established in Jordan House Ltd. v. Menow by calling Pettie's wife or sister to take charge of him. How, then, can Mayfield be liable when Pettie was already in their charge, and they knew how much he had had to drink? While it is technically true that Stuart Pettie was not "put into" the care of his sober wife and sister, this is surely a matter of semantics. He was already in their care, and they knew how much he had to drink. It is not reasonable to suggest in these circumstances that Mayfield had to do more.
54 Mayfield would have known that the group arrived together, that they spent the evening together, and that they left together. In addition, they would have known that they were part of the Dispensaries Limited company Christmas party, and that two sober adults were present at the table when the drinks were ordered and consumed. In the circumstances, it was reasonable for Mayfield to assume that the four people at the table were not travelling separately, and it was reasonable for Mayfield to assume that one of the two sober people who were at the table would either drive or find alternative transportation.
55 The trial judge was correct in concluding on these facts that it was not necessary for Mayfield to enquire who was driving or that it would have made any difference if they had. It was not reasonably foreseeable that Stuart Pettie would be driving when a sober wife and sister were present with full knowledge of the circumstances.
56 I agree that establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. Such was the situation in Canada Trust Co. v. Porter, supra, where the alcohol was served from behind a bar and it was impossible for the establishment either to monitor the amount consumed or to determine whether intervention was necessary. A similar situation arose in Gouge v. Three Top Investment Holdings Inc.,  O.J. No. 751 (Ont. Ct. (Gen. Div.)) (QL), where the plaintiff attended a company Christmas party which had a "cash bar", over-indulged, and then was involved in an accident. In such circumstances, it would not be open to the establishment to claim that they could not foresee the risk created when the inability to foresee the risk was the direct result of the way the serving environment was structured.
57 However that was not the situation here. Mayfield was aware of the circumstances in which Stuart Pettie was drinking. In the environment of the case at bar, it was not reasonable for them to intervene.
58 On the facts of this case I conclude that Mayfield Investments Ltd. did not breach the duty of care they owed to Gillian Stewart. On this basis I would allow the appeal.
59 An equally compelling reason to allow this appeal flows from the absence of proof of causation.
60 The plaintiff in a tort action has the burden of proving each of the elements of the claim on the balance of probabilities. This includes proving that the defendant's impugned conduct actually caused the loss complained of.
61 Here, the appellant claims that the respondents have not proved that the failure of Mayfield to intervene actually caused the injuries to Gillian Stewart. They point to the conversation that took place in the parking lot after the group left Stage West, and argue that, even if Mayfield had intervened in some way, Gillian Stewart and Shelley Pettie addressed the issue of Stuart Pettie's fitness to drive in the parking lot after leaving the Mayfield Inn, and came to an independent determination on this point.
62 Kerans J.A., in a separate concurring judgment in the Court of Appeal, resolved this issue as follows, at p. 124:
Had the server made the sort of comment I just suggested, I am of the view that the conversation relied upon would have come to a different conclusion. . . . Her intervention, in my view, probably would have made the difference.
63 (Hetherington J.A., writing for the majority in the Court of Appeal, did not comment on the question of whether Gillian Stewart and Shelley Pettie would have decided to let Stuart Pettie drive even if Mayfield had intervened.)
64 With respect, this statement is based on pure speculation. The fact is that there is no evidence on the question of whether Gillian Stewart and Shelley Pettie would have come to the same or a different conclusion had Mayfield intervened in some way. We are therefore left with an evidentiary gap on this issue.
65 There has progressively been developments in tort law which lessen the burden facing a plaintiff in trying to prove that the defendant's actions actually caused the loss complained of. See Snell v. Farrell,  2 S.C.R. 311. This makes the plaintiff's task less onerous where there is some inherent difficulty in proving causation with scientific accuracy, or where the facts surrounding causation lie uniquely within the knowledge of the defendant.
66 However, that is not the situation here. There is nothing unusual or difficult in this case about proving causation. Nor do the facts lie particularly within the knowledge of the defendant. The person who had the obligation and could have provided some evidence, if such existed, on whether intervention by Mayfield would have made any difference was the injured Gillian Stewart. She testified at the trial, but not on this point. This leaves the inference that had she been asked if Mayfield's had intervened, that is to advise her of facts already known to her that would have made any difference to her decision to have Pettie drive, her answer would have been no.
67 That answer would accord with the circumstances. The respondent Stewart, in the company of an equally sober sister-in-law, concluded that Pettie was competent to drive. The courts should not interfere in such decisions freely made.
68 This is not a case where the fact of causation is so patently obvious as to require no proof. Nor is it a case where there is a natural inference of causation from established facts, such that the defendant has to lead evidence negativing causation. It is a case where there is no evidence to indicate that Gillian Stewart and Shelley Pettie would have reached any other conclusion than the one they reached even if Mayfield had intervened.
69 I would therefore also allow this appeal on the basis that the plaintiffs have failed to discharge the onus placed on them to show that Mayfield's failure to intervene actually caused Gillian Stewart's injuries.
70 Given the fact that I do not find any liability on the part of Mayfield Investments Ltd., it is unnecessary to address the issues relating to Gillian Stewart's contributory negligence, or whether the fact that Stuart Pettie drove while intoxicated could be said to be, in itself, gross negligence.
71 I would allow the appeal and dismiss the action against Mayfield Investments Ltd. with costs throughout.
72 I would dismiss the cross-appeal by Gillian Stewart and Keith Stewart against the finding by the courts below that Stuart Pettie was not grossly negligent.
Appeal allowed with costs; cross-appeal dismissed.
Solicitors for the appellant/cross-respondent Mayfield Investments Ltd.: Bryan & Company, Edmonton.
Solicitors for the respondents/cross-appellants Gillian Stewart and Keith Stewart: Bishop & McKenzie, Edmonton.
Solicitors for the respondent/cross-respondent Stuart David Pettie: Chomicki, Baril, Edmonton.