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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.

"Are we worried? That’s one word for it," said Schweighardt. "It’s been a real eye-opener for the industry, no doubt, but I think a lot of people would consider this decision to be a little bit crazy. These guys were home, they went home. I don’t know how much responsibility there is after someone gets home. Are we supposed to lock them in the door?"

Schweighardt says there were other factors involved, including some free alcohol, but says the local industry supports an appeal. "It’s something the whole industry will be watching closely."

As for their own operations, Schweighardt says that they’ve been doing things differently for a long time, but they will reinforce their own policies.

"It’s an eye-opener for us to have a closer look at the way we do things, to make sure people aren’t stumbling out the front door, to make sure they’re leaving with responsible individuals, to make sure they’re directed to the taxis. We talk about overservice every day, and make sure everyone who works here goes through the Serving It Right program," he said.

"It’s an ongoing process because Whistler has transient staff, so it’s an everyday process. I don’t know if it’s something you can do any differently."

Schweighardt says he has spoken to the majority of establishments in town, and most agree that "it was a shocking decision."

He doesn’t expect the decision to result in higher insurance rates, although rates have gone up by as much as 500 per cent, with less coverage provided, since the Sept. 11 terrorist attacks.

Pique Newsmagazine attempted to contact the Alliance of Beverage Licensees of B.C. for comment on the ruling, but they did not respond by press time.

Based on testimony, Justice Hood said the three men involved in the accident should have been showing signs of intoxication when they left each drinking establishment, and the establishments had a duty to find out how they were getting home and whether any of them were driving. If they had done so, they may have discovered that MacKinnon was the driver and determined that there was a risk.

"I am satisfied… that the employees of both establishments should have foreseen that there was a risk that at least one of the three intoxicated men might drive and there was a real risk the driver might cause harm to third parties, and, in particular, to his two companion passengers," wrote Justice Hood. "In my opinion, a reasonably prudent establishment would have done so, and both establishments should have taken positive steps to see that MacKinnon did not drive the vehicle in order to discharge the burden on them."

According to court documents, the accident occurred between Whistler and Pemberton when the vehicle skidded off the highway into the ditch. The left rear side of the roof, above where Holton was sitting, was crushed when the car rolled over, resulting in the spinal injury.

The evening began at approximately 9 p.m. on Oct. 7 when the driver, Barry MacKinnon, passenger Christopher Martineau and Holton shared a six-pack of beer at Holton’s residence. They went to The Crab Shack after 9 p.m. and stayed for approximately three hours before heading to Garfinkel’s.

They left Garfinkel’s at 1 a.m., and drove back to Holton’s house in MacKinnon’s vehicle. They stayed at Holton’s house for approximately 35 minutes before heading to Pemberton. The accident occurred shortly after 2 a.m.