Abstract

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.