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The limits of liability
ALCOHOL IN THE WORKPLACE
A recent case in British Columbia should make employers think twice about providing employees with alcohol
by David P. Church and Sharon D. Matthews
(from the July/August, 1996 issue)
That a host owes a duty to guests to ensure that they do not drive if they are impaired after consuming alcohol provided by the host, is not new law in Canada.1 In Jacobsen v. Nike Canada Ltd.2 the British Columbia Supreme Court broke new ground in holding that an employer who supplies alcohol to its employees owes a greater duty than a host owes to invited guests.
Michael Jacobsen was employed by Nike Canada Ltd. On September 16, 1991, the plaintiff was working for Nike setting up a display for a trade show at B.C. Place stadium in Vancouver. His employer required him to bring his automobile to B.C. Place, because it was needed to transport items to the stadium. The defendant had a crew of five working at B.C. Place on that day, including a foreman and a project manager. The project manager brought beer to the crew at approximately 7:00 p.m. and again at approximately 8:30 p.m. In total, 60 beer were available to the crew and the supervisor. The crew members were instructed not to get drunk but the amount which they drank was not monitored by the crew foreman or by the project manager who provided the beer. Two other members of the crew, other than the plaintiff, testified that they drank between 10 and 12 beer each in the four and one half hour period. The judge found that the plaintiff consumed at least eight beer in that period. When the crew was dismissed for the evening, neither the project manager nor the foreman asked any of the crew how much beer they had consumed nor if they were fit to drive. They did not offer or suggest any alternative transportation home.
Upon leaving the work site, the plaintiff and one of his co-workers on the crew went to two pubs within a short walking distance of B.C. Place and consumed more alcohol. The plaintiff returned to his car at B.C. Place at 1:45 a.m. and drove home. He drove off the road into a ditch and suffered a devastating spinal cord injury, which left him a quadriplegic.
The plaintiff conceded that he was partly at fault for his injuries. However, he urged the court to find Nike primarily responsible.
Nike conceded that it owed the plaintiff the same duty of care that a commercial provider of alcohol owes a guest. That duty consists of preventing guests who have consumed alcohol from driving if the host knows or should have known that the guest is impaired. Nike said that it did not know, nor should it have known, that the plaintiff was impaired when he left B.C. Place. Jacobsen argued that Nike's duty went further: as the employer, Nike had a duty to ensure a safe work environment for its employees. He further argued that Nike breached that duty when it supplied its employees with alcohol while they were working. After it breached that duty, it was incumbent on Nike to ensure that the employees did not drive while impaired.
Generally speaking, the law imposes an obligation on employers to make the place of employment as safe as the exercise of reasonable skill and care permits.3
In Jacobsen, the judge made two legal findings which will affect the position of employers who provide alcohol to employees in the course of work. First, she held that an employer does owe a higher duty to employees than the duty owed by tavern owners to patrons because the law requires an employer to take reasonable care for the safety of its employees.
The court held that duty requires employers to avoid introducing conditions into the workplace which could reasonably put the employee at risk.
Second, the obligation on any host, either employer or tavern owner, includes the duty to monitor the consumption of alcohol by those to whom it is being provided, make reasonable assumptions based on the amount consumed, as to the likely impairment of the individual and to take steps to prevent the individual from driving if the person is likely impaired and is likely to drive. This finding is important because the court did not accede to the argument that the employer or host exhibits reasonable conduct if they merely look for visible signs of impairment. The employer/host has an obligation to monitor the alcohol consumed and use that factor to determine if the person is likely impaired.
In this particular case, the judge found that by requiring the employees to bring their vehicles to work that day, and by providing what amounted to unlimited quantities of alcohol to the workers for their consumption while working, Nike made drinking and driving part of the working conditions on that day. She commented that it was hard to imagine a more obvious risk than introducing drinking and driving into the workplace. Accordingly, Nike had failed to meet the higher standard imposed on an employer because it had failed to provide a work environment in which the employees were safe from reasonably foreseeable harm. The judge also concluded that the employer violated the lower standard applied to social hosts because it did not recognize obvious signs of impairment exhibited by the plaintiff, it made no attempt to monitor the plaintiff's alcohol consumption, and it knew -- or should have known -- that the plaintiff was likely to be impaired and was likely to drive. The court rejected Nike's contention that it was not reasonable for it to monitor the plaintiff's alcohol consumption.
The court also held that the obligation to monitor the consumption of alcohol by employees while at work functions can be obviated if the employer makes alternative transportation available after the function or subsidizes hotel accommodation at the location of the function. Although these comments did not directly address the facts of the case, with these comments the court indicated that it extended the duties described above to work/social functions, such as Christmas parties.
The court held Nike to be 75 per cent responsible for the plaintiff's injuries. The court awarded the plaintiff more than $2.7 million in damages to compensate for past income loss, future income loss, cost of future care, out of pocket expenses, and pain suffering and loss of enjoyment of life. Hence, the plaintiff was entitled to recover 75 per cent of that amount from the defendant, or about $2 million.
A troubling aspect of this case is the imposition of the duty on the employer to monitor consumption of alcohol by an employee and prevent the employee from driving if the employee is likely to be impaired based on the amount of alcohol consumed, regardless of the visible signs of impairment exhibited by the employee. Unless employers wish to take on the challenge of assessing impairment in their employees (this is not an easy task generally and the downside of being wrong is formidable) the only practical option in these circumstances is to not provide alcohol unless the employer also provides an alternative means of transportation or accommodation.
In light of this case, an employer should take the following steps to avoid liability:
- do not supply alcohol during working hours;
- if alcohol is available during work hours, strictly limit the amount available and monitor consumption;
- unless an employee has not consumed alcohol or it is clear that the amount consumed could not cause impairment, provide alternative transportation or accommodation and require that the employee take advantage of that offer.
Nike is appealing the case, but company representatives testified that as a result of this accident, the company no longer provides alcohol to employees while they are working. At the annual Christmas party, it provides alternative transportation or subsidizes hotel accommodation to employees who will drive after the function.
Prudence dictates that all employers now adopt these policies.
David P. Church and Sharon D. Matthews are both lawyers with the Vancouver law firm of Camp Church & Associates. The firm's practice is restricted to civil litigation and includes cases involving commercial litigation, aviation litigation, product liability, employment law, workers' compensation law, professional negligence and personal injury.
REFERENCES
1. See Stewart v. Pettie, [1995] 1 S.C.R. 131 in which the Supreme Court of Canada held that a commercial provider of alcohol has a duty to watch consumers of alcohol for signs of impairment and to prevent them from driving if they show such signs. Also see: Jordan House Ltd. v. Menow (1973). 38 D.L.R. (3d) 105 (S.C.C.). Both these cases are decisions of the Supreme Court of Canada.
2. Unreported, February 22, 1996, British Columbia Supreme Court Vancouver Registry No. C918359. Nike Canada Ltd. has filed a Notice of Appeal to the British Columbia Court of Appeal. The decision is only binding on the British Columbia Provincial Court and the British Columbia Supreme Court, although other jurisdictions may consider the ruling.
3. Naismith v. London Film Productions Ltd. [1939] 1 All E.R. 794 (C.A.). This case is a decision of the English Court of Appeal which has been adopted as stating the correct principle of law in Canada.
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