TORT AND THE ROAD TO TEMPERANCE: A DIFFERENT KIND OF OFFENSIVE AGAINST THE DRINKING DRIVER
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01783.x |
| Date | 01 November 1988 |
| Published date | 01 November 1988 |
| Author | Jeremy Horder |
TORT AND THE ROAD TO TEMPERANCE: A
DIFFERENT KIND
OF
OFFENSIVE AGAINST THE
DRINKING DRIVER
ALCOHOL-RELATED road accidents involve an appalling human and
economic cost.’ Received wisdom concerning the best way to
reduce that cost has usually dictated stepping up the use and the
severity
of
criminal sanctions against drinking drivers themselves.*
However, the pride
of
place normally given to such an approach in
campaigns against drinking and driving has recently been the
subject
of
a radical challenge in the American courts, through
novel developments in the tort of negligence, developments which
are the concern
of
this article. The radical character
of
the
challenge to received wisdom in the American courts lies first, in
their switch
of
the focus for blame and sanctions from drinking
drivers themselves to those who supply alcohol to drinking drivers;
and secondly, in their efforts to achieve this shift of focus through
the imposition not
of
criminal but of
civil
liability on those who
supply alcohol to drinking drivers. My concern here will be to
provide a thumb-nail sketch
of
the development
of
this kind
of
liability for the harm done to people subsequently involved in
accidents with the drinking drivers
on
the roads, to consider
whether such liability could gain a foothold in English law, and to
reflect on whether, even if this were possible, it is desirable.
THE
CRIMINAL
LIABILITY LAWS-ELAPSI RESURREXERUNT
Our story must begin in the nineteenth century with the temperance
m~vement.~ The proponents
of
“temperance,” as the word implies,
had at one time been concerned to secure moderation in drinking.
They achieved as part
of
this aim, both in England and America,
the enactment
of
what became commonly known in America as the
“dramshop” acts4 The principal function
of
the dramshop acts was
to
deter the provision
of
alcohol to those who had already stepped
beyond the bounds
of
moderation (who were drunk), and/or to
those who consistently stepped beyond the bounds
of
moderation
(who were habitually drunk). To this end, it was commonly made
’
Some
26,ooO
people die in alcohol-related road accidents alone in the
U.S.,
the
focus
of
this article. The total cost
of
drink-driving accidents there is estimated at somewhere
between 21 and 24 billion dollars per annum4ee French, Kaput, and Wildman, “Social
Host Liability
for
the Acts
of
Intoxicated Guests-Special Project” (1985) 70 Cornell
L.R. 1058, at p.1059.
On the historical background to the temperance movement, see the essay by Keller
in
Low,
Alcohol,
and Order
(ed. Kyvig) 1985, esp. pp.162-163. See also “Special
Project,”
op.
cir.,
note
1,
at pp.1065-1067.
For an exhaustive list
of
examples, see “Special Project,”
op.
cif.,
note
1,
at pp.1076
1077, note 135;
for
an English example, see Licensing Act 1872 (35
&
36 Vict. c.94),
s.13.
*
See Ross,
Deferring fhe Drinking Driver
(1982) Chap.
4.
735
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