Individual responsibility is returning as a valid issue after two new High Court decisions which significantly change the liability playing field in Australia.

In one case the court ruled that a Tasmanian publican who returned motorcycle keys to an intoxicated patron – at the insistence of the patron, who then died in a crash – had not failed in his duty of care.

In the other, the High Court ruled that a NSW reception venue was not liable for the shooting of two men by a fellow patron. The gunman had left after a dance floor argument and returned with a weapon, breaching security along the way.

Paul Baram, an insurance partner at law firm Deacons, describes the decisions as significant for insurers.

He says that in the Tasmanian case, the High Court has clarified the position of hotel proprietors and licensees. Previously it was unclear whether there was a duty to physically prevent patrons from using a vehicle, even though there is a duty under liquor licensing to cut off the supply of alcohol.

“The court is emphasising individual responsibility and the autonomy of the drinker, and emphasising the difficulties and the burdens imposed on licensees trying to check whether someone has drunk too much,” Mr Baram told insuranceNEWS.com.au.

He says the ruling on the NSW case has “raised the bar” for people taking legal action because they must now prove negligence is a necessary condition for a harm to occur.

“The High Court is saying, ‘it is not good enough to say that, had there been more security, the outcome might have been different’. They have to prove factual causation.”