A unanimous decision handed down this week by the High Court will cause jubilation in the hotel industry in its ongoing efforts to shift all responsibility for the harms caused by drinking onto drinkers. In the judgement, a duty-of-care negligence claim against a Tasmanian hotel owner was dismissed. He had handed back motorcycle keys, which had been lodged with staff for safe-keeping, to an insistent, belligerent patron, who on leaving the pub was killed in a crash while showing a blood alcohol level of 0.253. A reading of 0.05 doubles the risk of a crash. At 0.08, the risk increases seven times. At 0.15, it is 25 times higher. Data are too scant to reliably calculate the stratospheric increase in risk at the level shown by the dead man.

The man had drunk seven or eight cans of bourbon and cola between 5.15 pm and 8.30 pm. According to the judgement, the licensee told him he had had enough, that it was time to go home, and asked for his wife’s phone number so that she could fetch him. The patron became agitated and said, “If I want you to ring my f’ing’ wife, I’d f’ing ask ya.” The licensee responded, “Whoo hang on, whoo, whoo, whoo, this is not, you know, don’t go crook at me, this is not the arrangement that was made.” Not having the wife’s phone number, and not wanting to push the issue into further confrontation, the licensee then gave the keys to the patron, after asking him three times if he was OK to drive.

While the verdict in no way removes all duty of care from hoteliers, it will surely set a benchmark that will be enthusiastically incorporated into bar staff training sessions for years to come. Bar staff will be told that there’s no apparent problem in continuing to serve patrons till their blood is almost pickled with alcohol and that they have no duty of care to take steps to prevent a drink patron getting behind a wheel.

The High Court’s judgement, steeped in precedent, contains some startling reasoning. It first enshrines the right of people to get as intoxicated as they please, noting that a hotelier has no business in ‘‘impairing the autonomy’’ of a patron wanting to do this. While the court agreed that the licensee had a statutory duty to refuse an intoxicated person service if he or she appeared to be drunk and to require that they leave the hotel, it ruled that no one other than the police had a right to restrain a person from driving when intoxicated, and that if the hotelier had refused to return the keys to the intoxicated patron or somehow restrained him, he would have been guilty of ‘‘false imprisonment’’.

The legal defence of necessity allows citizens to break laws if they judge that some higher responsibility or good will be served by their actions. If I were to forcibly enter a house on fire on a reasonable expectation that I might save the lives of occupants, any charge of wilful damage or trespass would be dismissed. Here, if a bar worker – hopefully having attended a mandatory course on the responsible service of alcohol, at which they would have learned about the increased risks of motor vehicle crashes caused by drinking – were to try and prevent a plainly drunk person from driving a motor vehicle, the law as it stands appears to say they have no right to do so.

In this incident, the apparently inviolable exercise of the dead man’s autonomy resulted in his own death. But every year drink drivers kill and permanently injure hundreds of Australians. One-third of all road deaths involve alcohol.

The alcohol industry profits hugely from heavy-duty alcohol consumption. The National Drug and Alcohol Research Centre has calculated that 39 percent of alcohol is consumed in Australia at levels posing long-term health risks. For all its posturing about the responsible service of alcohol, it knows there is a low probability that courts will see cases involving serving those who are drunk.

In 2006, a magistrate dismissed charges against two bar staff who had served a West Australian woman who then fell 15 stories to her death with a blood alcohol reading of 0.342. The woman had been unable to walk unaided, and the bar staff had to help her to the toilet. At the time, an Australian Hotels Association spokesman said cryptically, “The industry sat up and took notice of what had happened here’’. Bar staff are told that the law says they cannot serve intoxicated persons, but they know they will rarely be charged if they do so. There have been just 17 such prosecutions a year in Queensland in the past five years.

This judgement should unleash momentum for the mandatory fitting of ignition interlocking devices on all vehicles. These devices require the driver to blow into a tube to detect alcohol consumption. The lock will not deactivate if alcohol is detected. Evidence from many trials show the success of this measure. For example, a New Mexico study of 437 drink-driving offenders ordered to have interlocks installed found a reduction in recidivism of 65 percent after installation, compared with a comparison drink-driving group that did not have the devices installed.