Another issue that raises considerable practical and evidentiary difficulties is the definition of “excessive service” or “visible intoxication”, since both are indeterminate concepts, necessarily subject to subjective interpretation. Portuguese case law on the matter is virtually non-existent, while the Court of Justice of the European Union, in the field of consumer protection, has favoured a stricter interpretation of suppliers’ duties of care, albeit without significant elaboration. Within this legal framework, it appears difficult— indeed hazardous—to sustain the existence of genuine civil liability of bars and restaurants for harm caused by their over-served customers. A further practical obstacle arises from evidentiary challenges in proving imputation when the customer has consumed alcohol in more than one establishment. 4.2. Causal link The requirement of causation presents equally serious difficulties. Consider, for instance, the case of a restaurant client who drinks excessively at dinner and subsequently drives, causing an accident. Can civil liability for such an accident be imputed to the establishment? Such attribution would depend on evidence demonstrating an adequate causal link between the service rendered (the alcoholic beverages provided) and the subsequent harm, as road traffic accidents or assaults may have multiple contributing causes (the customer’s own conduct, failures in policing, third-party contributions). Establishing the excessive service of alcohol in a particular bar constituted the decisive factor is legally complex, if not virtually impossible, in most instances. An additional complication arises where the customer expressly assured the establishment that they would not drive, only to act otherwise—circumstances entirely beyond the establishment’s control. Given that the Portuguese test of adequate causation requires the conduct of the establishment to be, in the light of common experience, apt to produce the harm, it is evident that satisfying this requirement constitutes a formidable obstacle. By contrast, in other jurisdictions such as the United States, causation is presumed in certain scenarios—for example, where service is provided to minors or to visibly intoxicated clients. Within the European Union, although the approach remains more restrictive, a gradual acceptance can be discerned that the creation or aggravation of risk—for instance, the continued serving of an intoxicated customer—may suffice to establish the causal link, insofar as it can be shown that the excessive service created or significantly aggravated the risk which ultimately materialised in the harm. One way or the other, it will always be very difficult to establish the causal link between the drinking and the damage. 184 JOÃO ALMEIDA VIDAL
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