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.

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