Australia: Alcohol consumption at work and an employers duty of care

In brief - Employer found not liable for an employee's own alcohol-fuelled carelessness

The Victorian Supreme Court has held in Puleio v Olam Orchards Pty Ltd [2018] VSC 109 that an employer did not breach its duty of care by failing to prevent a worker from consuming alcohol at its premises in circumstances where the worker has incorrectly operated machinery while intoxicated and has fatally injured himself.

In Puleio, a widow brought a claim against her deceased husband's employer, Olam Orchards Pty Ltd, after he died when a slasher attached to a tractor he had been using rolled over him. The deceased had been on site at his workplace after hours, planning to stay overnight. In the early hours of the morning the deceased had been slashing grass and weeds along a fence line using a tractor with a hydraulic slasher affixed to the rear. The deceased drove too close to a wire fence which became entangled with the slasher. When the deceased disembarked the tractor to inspect and untangle the slasher, he failed to put the tractor's handbrake on and the tractor rolled down the slope at which time the deceased was dragged under the slasher and suffered fatal injuries.

A toxicology report revealed that the deceased had a blood alcohol content (BAC) of 0.18 at the time of the accident, well above the legal driving limit. Further, it was found that the deceased was performing an activity not assigned to him and without the knowledge or consent of the employer when the accident occurred.

Responsibility for alcohol consumption at Common Law

In CAL No 14 Pty Ltd v Scott [2009] HCA 47 (Scott), the High Court held (at [35]) that "even if there can sometimes be a duty of care on a publican to take reasonable care in relation to the future service of alcohol or the consequences of having served it in the past, no duty can arise in the present circumstances."

In Scott, the owner of the relevant licensed premises served alcohol to Mr Scott and then allowed him to ride his motorcycle home (having previously taken the motorcycle keys from Mr Scott) despite Mr Scott being in an intoxicated state. The High Court held that while the publican had a statutory duty (based on Tasmanian liquor licensing laws) to refuse Mr Scott service and not supply him with liquor if he appeared to be drunk, only a Police officer had the power to arrest Mr Scott if there were reasonable grounds to suspect that Mr Scott had committed an offence by driving a vehicle under the influence of liquor.

The High Court principally held:

  • that the licensed premises did not breach any duty of care by handing back Mr Scott's motorcycle keys and allowing him to ride home
  • that persons in the position of the owner of the relevant licensed premises, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume
  • save in exceptional circumstances, publicans owe no duty to their customers in relation to how much alcohol is served and the consequence of serving it

In reaching its conclusion, the High Court noted that it was not unlawful to consume alcohol and a duty which required a person to control the amount of alcohol consumed by a patron conflicts with that patron's autonomy.

Scope of employers' duty - preventing alcohol consumption at work

An employer's duty to take reasonable care for the safety of its employees provides a far stricter standard of care than that owed by an occupier, such as the publican in Scott.

An employer owes its employees a non-delegable duty to take reasonable care to protect them against any foreseeable injury that may arise during the course of employment.

The key issue for determination before the Court in Puleio was the scope of the duty of care owed to the deceased and whether this extended to a duty to take reasonable care to prevent the deceased from consuming alcohol on the premises outside of work hours.

Supreme Court concludes no duty to prevent consumption of alcohol on work premises outside work hours

In Puleio, the employer had accommodation facilities at its premises for its workers, who were regularly working night shifts. It also had a .00 alcohol policy for workers when operating machinery. While the Court held that the employer knew that its employees did, from time to time, drink alcohol on the work site after hours, the Court concluded that the employer's duty of care did not extend to unreasonably controlling or directing its employees' personal activities and therefore no duty to prevent the consumption of alcohol arose where the deceased was not on duty or "on call" and the incident occurred during his personal time.

A critical factor in influencing the judgment of Justice Zammit in Puleio is that the duty of care owed by an employer arises by reason of the nature of the employer-employee relationship and, in particular, the employer's ability to direct or control the behaviour of the employee. Although the standard of care owed by an employer is an onerous one, the standard of reasonable care is not the same as a guarantee of safety for employees.

Justice Zammit held that an employer is not and should not be in a position to control the after work or off duty behaviour of its employees, unless the conduct in question is an "integral part" of their employment duties. The element of control that an employer has over its employees must be directed to the safety of the worksite, and not to the employees' social habits during their own time. Any such duty would impermissibly interfere in the private lives and personal autonomy of its employees. Her Honour accepted that the scope of the duty the employer owed the deceased did not require it to take reasonable care to prevent the deceased from consuming any alcohol on the premises after hours.

This reasoning is consistent with the reasoning of the High Court in Scott: the law will be reluctant to impose on a person a duty that interferes with the autonomy and personal liberty of another person.

Ultimately, the Court found that the deceased's accident was a consequence of his carelessness, for which he alone was responsible.

What is the impact of Puleio decision for employers?

Employers should bear in mind that each case is assessed on its own facts. However, they can take some comfort in the Court's finding in Puleio that employers are not required to control, and will not be responsible for, an employee's after work conduct where that conduct is unrelated to or outside the scope of that employee's employment duties, even if the conduct occurs on work premises.

Nevertheless, employers should have appropriate workplace policies in place with respect to the consumption of alcohol, particularly if the workplace involves the use of machinery.

Rose Raniolo Alistair Boughton Jessica Fletcher
Insurance and reinsurance
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions