Court decision ‘real eye-opener’ for bars 

Industry watching appeal closely after nightclubs found liable for drinking and driving injuries

The Crab Shack and former owners of Garfinkel’s are appealing a recent Supreme Court ruling that found each establishment 15 per cent liable for the injuries sustained by a former customer who became paralyzed in a motor vehicle accident more than two years ago.

That ruling could translate to between $1 million and $1.5 million for each of the defendants if plaintiff Thomas Holton, 30, is awarded between $7 million and $10 million in damages as his lawyer has suggested.

Bruson Holdings, the operator of The Crab Shack, and Garfinkel Whistler Enterprises immediately announced plans to appeal the decision, which was handed down by Justice Sherman Hood on Jan. 14. In his decision, Justice Hood also found the driver of the car 40 per cent responsible, and the victim 30 per cent responsible.

The trial, which took place Sept. 7-28 in Vancouver, was the result of a civil suit by Holton against both companies. Holton, who was a passenger in the vehicle, broke two vertebrae in the Oct. 8, 2002 accident and is a quadriplegic.

According to Gordon Hilliker, the counsel for Bruson Holdings, both establishments have already filed a notice of appeal for the ruling. Once their written arguments are filed, they will be able to apply for a court date.

Hilliker says his clients are basing their appeal on several grounds.

"There’s legal issues involved and there’s also some factual issues," he said. "The legal issue is, on behalf of The Crab Shack, once a patron is safely home, that’s the end of any duty."

There are several precedents across Canada that suggest that a bar’s responsibility to its customers ends once that customer is home, and Holton had returned home safely from both bars on the night in question before heading out again to a party in Pemberton.

"We don’t agree that either one of them was intoxicated at The Crab Shack, but the most that could have been done is to suggest they take a cab home. But if they did go home and then decide to go off someplace else (The Crab Shack) weren’t responsible for that," Hilliker added.

"The factual issue here is whether or not they (Holton and the driver) were intoxicated at The Crab Shack."

Hilliker has not read Garfinkel’s grounds for appeal, but said they may be different than The Crab Shack’s.

It can take up to a year to appeal a Supreme Court decision. The court hearing on damages may not take place until 2007.

The hospitality industry will be watching the appeal process closely, according to Dale Schweighardt, the manager of Buffalo Bill’s and a member of the Whistler Food and Beverage Association.

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