Written By H. Martin Kay and Brenda J. Johnson

The Supreme Court of Canada has issued its judgment in Childs v. Desormeaux (May 5, 2006), a social host liability case from Ontario, deciding that hosts of a party at which alcohol is served are not under a duty of care to members of the public who may be injured by an intoxicated guest's conduct.

Desmond Desormeaux attended a New Year's Eve B.Y.O.B. party at the house of friends and drank at least 12 beers over 2 ½ hours. He was known for his heavy drinking and had previous drunk driving convictions. The host of the party walked with him to his car; then Desormeaux drove away. He caused an accident shortly afterwards, colliding head on with another vehicle. Desormeaux and his two passengers were injured. One person in the other car was killed, and the others were seriously injured, including Z Childs, a teenager. Childs' spine was severed and she is paralyzed from the waist down. Desormeaux pleaded guilty to criminal charges arising out of the accident and received a 10-year sentence.

When Childs and her family sued the hosts of the party, the trial judge found that the hosts did owe a duty of care to third parties who may be injured by drunken guests. However, he also held that, due to policy considerations involving social and legal consequences of imposing a duty on social hosts, he could not find them liable and that the Legislature would have to pass a law to impose such liability. The Ontario Court of Appeal dismissed the appeal by the Childs family, finding no duty of care. When the case went to the Supreme Court of Canada, M.A.D.D. (Mothers Against Drunk Driving) and the Insurance Bureau of Canada intervened.

McLachlin, C.J., the Chief Justice of the Supreme Court, wrote the reasons for a unanimous court. She found that it was not reasonably foreseeable that Ms. Childs would be injured if the hosts failed to prevent Desormeaux from driving. The trial judge found that Desormeaux would have been showing "obvious signs of impairment" at the party, but did not make a finding that the hosts of the party should have known Desormeaux was too drunk to drive. At the time of the accident, Desormeaux had more than twice the legal limit of alcohol in his blood. According to the Supreme Court, a history of alcohol consumption and impaired driving did not make impaired driving on this occasion, and its consequent risk to others, "reasonably foreseeable." It is this part of the judgment which will likely seem remarkable to most Canadians.

A guest at a New Years' Eve party who has been convicted more than once of drunk driving in the past, and who would have been visibly drunk if anyone took care to notice, would seem to warrant close observation, particularly upon leaving and getting into the driver's seat of his vehicle at 1:30 a.m. There would be little doubt if he fell and injured himself in the hosts' home that injury was foreseeable in such a state.

The Court identified two clear concerns in rejecting Childs' theory of liability here. Firstly, this was a case of nonfeasance, or a failure to act, as opposed to negligent conduct by a defendant. This concern seems misplaced as there are many examples in the law of duties imposed to act positively in a situation of foreseeable harm, the most analogous being that of a commercial host of alcohol. Several of these situations were in fact discussed by the Court, but distinguished. In particular, the Court emphasized the regulatory scheme governing commercial hosts, their duty to not over serve patrons and the financial gains that commercial hosts obtain from serving alcohol. Lack of remuneration should not cloud the vision here though. While there are many circumstances where the training and knowledge of bar staff should heighten their awareness as to risk, drinking and driving would not seem to be one of them. The Supreme Court does not explain in a very satisfactory manner how the duty can arise in a commercial setting, sometimes in a very onerous manner, yet is unlikely to arise at all in a social setting. One could see a denial of any duty arising on the particular facts here, or a duty arising but liability denied on policy grounds (as the trial judge found), but the broad statements denying the imposition of a duty generally are not convincing nor are they likely to prove so to non-lawyers.

Secondly, and even less understandable, the Court said it was concerned with preserving the autonomy of guests of social hosts. The policy of the Court then seems to favour the autonomy of individuals who choose to drink excessively and then drive, over the safety of third parties who are also present on public roads.

The dismissal of the appeal leaves some (but not much) room for future social host liability cases to go forward. The reasons indicate that, on different facts, there may be at least a duty of care owed by a social host. The Supreme Court suggested that if a social host, aware that a guest who was driving home was intoxicated, continued to serve him/her alcohol, then a duty of care might be imposed as the host then implicated herself/ himself in creating a risk. Even in those circumstances, it is not certain that liability would be imposed upon the social host, as a court would still have to consider the policy implications of such a duty, the basis upon which the trial judge had decided this case. The tone of the reasoning is likely to discourage lower courts from imposing a duty on social hosts, either at all or as contrary to public policy.