Publicans could be sued for negligence by patrons who are injured as a result of being drunk when they leave their premises, according to an article in the latest issue of the Bar Review.
Mr Mark Dunne, a barrister, says the Irish courts have never made a decision on the matter as cases which have arisen where publicans were sued following accidents were settled out of court - perhaps because publicans and their insurers are wary of setting a legal precedent.
However, one settlement reached suggests agreement on some liability on a publican who serves a lot of drink to a person who is then put in danger.
In October of last year, a case was settled for a reputed £100,000. It involved a 55-year-old man who ended up a quadriplegic when he crashed into a wall after consuming a large quantity of alcohol in two licensed premises. He was driven to his car by the wife of the proprietor of one of them.
Although Irish courts have not made any decision on this issue, courts in other common law jurisdictions, Canada, Australia and the UK, which are taken as guidelines in the Irish courts, have built up a body of law.
While there are some differences between the decisions in the different jurisdictions, they seem to agree that it is negligence for a publican to continue to serve drink to a customer if, because of the circumstances, it is reasonably foreseeable that this would cause him or her to be in danger, according to Mr Dunne.
He quoted an Australian judge who gave as an example "where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is, or should be, known that he or she may move into dangerous circumstances, and where no action is taken to avert this".
This would arise if a customer was drunk beyond an ability to take care of himself or herself, and it was known to staff that he or she regularly drove home or walked home along a highway.
In such a situation the publican would be expected to place the customer in the care of a responsible person, or to allow him or her to remain on the premises until sobered up - or refuse to serve him or her so much alcohol that he or her became drunk beyond self-preservation.
However, Mr Dunne also points out that recent judgments in the UK suggest that it is the responsibility of individuals to understand the consequences for their safety of excessive consumption of alcohol.
He quotes a judgment in the House of Lords which said: "To dilute self-responsibility and to blame one adult for another's lack of self-control is neither just nor reasonable."
However, says Mr Dunne, it may be unfair and unreasonable for the law to allow the publican to continue to serve customers alcohol for financial gain when they are no longer capable of assuming responsibility for themselves.
Mr Dunne says Irish drinkers and publicans must await a decision of the Irish courts to clarify the law. Until then "publicans, patrons and insurers alike must serve, drink and insure with uncertainty".