Shifting Ground: Alcohol Liability and the Normative Content of Tort Law in Australia

By Francine Rochford.

Published by The Social Sciences Collection

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Article: Print $US10.00
Article: Electronic $US5.00

An Australian High Court decision has found a publican not liable in tort for damage due to a patron's decision to drive whilst intoxicated. This decision is the most recent of a series of similar cases, and legislative intervention in all states, which attribute liability on the basis of fault, consistently with traditional negligence actions. However, the exposition of normative grounds in negligence actions is often inchoate. This paper attempts to explicate alternative moral bases for negligence actions which shift loss away from the primarily responsible plaintiff to a secondarily responsible defendant, considering in particular whether there is a regressive tendency in shifting responsibility for self-preservation. It will consider whether moral responsibility is diminished by the state of intoxication and whether the decision to drink to the point of intoxication thus becomes the basis of moral censure. Finally, it considers whether the normative content of the tort of negligence is capable of withstanding non-normative decisional claims.

Keywords: Negligence, Tort, Alcohol Liability, Jurisprudence, Norms

International Journal of Interdisciplinary Social Sciences, Volume 5, Issue 8, pp.223-238. Article: Print (Spiral Bound). Article: Electronic (PDF File; 668.248KB).

Dr. Francine Rochford

Senior Lecturer, School of Law, La Trobe University, Bendigo, Victoria, Australia

Dr Francine Rochford belongs to the Bendigo campus of La Trobe University in Victoria, Australia, where she teaches in the Law of Contracts, Law of Torts, Constitutional Law and Business Law subjects. Her research interests include jurisprudence, the law and policy relating to rural water delivery, and the law of education. Previous research relating to jurisprudence has considered Habermas and the discursive resolution of norms. Previous research relating to the law of torts includes papers on the tortious liability of higher education institutions, the tortious liability of water supply authorities for contaminated water, and the standard of care in torts. In 2010 she is a visiting researcher at Lewis and Clark Law School in Oregon.

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