eCaseNote 2006 No. 06

SOCIAL HOSTS: NOT LIABLE? NOT SO FAST!

Childs v. Desormeaux (5 May 2006), Ottawa 30472 (SCC)

Zoe Childs was injured when a vehicle in which she was a passenger collided with a car driven by Desmond Desormeaux. As a result of the accident, one passenger in the car died and the driver, another passenger and Childs were injured. Childs suffered paralysis from the waist down. Desormeaux and his two passengers also suffered injuries. At the time of the accident, Desormeaux was driving under the influence after leaving a party hosted by Julie Zimmerman and Dwight Courrier. At the party, which was ‘Bring Your Own Booze’ (BYOB) event, Desormeaux had consumed approximately 12 beers in the span of two and a half hours. His blood alcohol level at the time of the accident was 225 mg per 100 ml, far above the 80 mg per 100 ml legal limit.

Childs brought an action against the hosts of the party for the injuries she suffered as a result of the accident. Her position was that the hosts should be held responsible for the actions of their party guest. Both the trial judge and the Court of Appeal held that social hosts do not owe a duty of care to third parties who are injured as a result of the conduct of an intoxicated party guest. Childs appealed to the Supreme Court of Canada.

The Supreme Court of Canada held that, on the facts of the case, social hosts of parties where there is alcohol served do not owe a duty of care to the public users of highways. The Court found that the case did not pass the first step of the duty of care test established in the leading British case of Anns v. Merton London Borough Council, which was adopted in Canada in the 1984 case of Kamloops (City of) v. Nielsen. The test states that, in order to prove a duty of care is owed, a plaintiff must show that there is proximity in the relationship between the defendant and the injured party and that it could be reasonably foreseen that the injury would occur. If this is established, then the defendant must also show that there are policy reasons for negating the duty.

Canadian commercial hosts have such a duty because they are better suited to monitoring alcohol consumption, they function in a highly regulated statutory regime, and they have a vested interest in the over-consumption of alcohol. Social hosts do not hold the same responsibility.

Childs argued that the hosts should have reasonably foreseen that Desormeaux would have taken the actions he did because of his history of excessive alcohol consumption. The Court found that there was no evidence that Desormeaux showed any signs of intoxication and therefore on the facts of the case, Childs’ injury was not reasonably foreseeable.

Further, courts are reluctant to establish consequences for a failure to act or a positive duty of care and will only do so in limited situations. These limited situations will include where the risk is created or controlled by a party, where there is a relationship of supervision and control or, as previously stated, in the situation of a commercial enterprise. This case does not fall into any of those categories.

There may be certain situations where a social host will be found to hold a duty of care. Chief Justice McLaughlin stated:

It might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties…

However, in general, an intoxicated party guest will be held responsible for his or her own choices, including the choice to drink and drive. Chief Justice McLaughlin summed up this principle up as follows:

A person who accepts an invitation to attend a party does not park his autonomy at the door. The guest remains responsible for his or her conduct. Short of active implication in the creation or enhancement of the risk, a host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity.

This case establishes that, as a general rule, there is no duty of care owed by social hosts to third parties who may be injured through the actions of intoxicated party guest. However, if the conduct of a social host creates or exacerbates a situation of risk, then there is the possibility that a social host could be found liable.

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