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Alcohol and Employees Are A Poor Mix

Each year, around this time, I dedicate a column to the topic of the heightened risk of injuries resulting from alcohol consumption at work-related events. While accidents arising out of these circumstances are seemingly few, the ramifications can be quite substantial.
 
Canadian court cases have firmly established the employer’s duty of care to take active steps to prevent injuries as a result of its employees’ alcohol consumption. If banning alcohol from staff events altogether isn’t satisfactory, there are many steps the employer can take towards reducing the likelihood of an accident.
 
Among other things, employers may implement a policy governing service and consumption of alcohol at company events. The first objective of such a policy is to put employees on notice that staff events are not an excuse for consuming alcohol to the point of posing a danger to themselves and others.
 
The policy may state that the employer opposes over-consumption and, in particular, opposes the operation of a vehicle (or engaging in other inherently dangerous activities) while impaired. It may also emphasize that the purpose of the policy is to establish a protocol for responsible consumption of alcohol at staff events.
 
The second objective of the policy is to establish basic rules to ensure the manner in which the event is organized and run discourages excessive consumption and minimizes the risk of injury. The employer might also distribute to its event organizers specific instructions on how to, and how not to, organize and monitor a staff event.
 
Event organizers may be made to understand that arranging and monitoring company events is considered to be an element of their job and that failure to comply with directions could have ramifications for their employment.
 
Employers may also communicate to the employees, in writing, that they are invited to attend on the conditions that they will take responsibility for their own consumption, will moderate their intake of alcohol, and will co-operate to ensure their safety (and that of others). There are many other practical steps which may be utilized to reduce the risk of impairment and of a resulting injury.
 
A stark example of the extent of injuries, and resulting damages, which can result from intoxication played out recently in B.C. Supreme Court.
 
Michelle Danicek was an articling student at a Vancouver law firm, Alexander Holburn Beaudin & Lang, when she was injured at a nightclub. She had been out for the evening with about 20 of the firm’s students and associate lawyers for an “associates dinner” (a thrice annual, firm-funded event) at a local restaurant.
 
Danicek had consumed alcohol at both the restaurant and the nightclub. So had another of the participants, a male associate lawyer who happened to be 6’2” and weighed some 220 pounds.
 
Dinner at the restaurant ended at about 10:30pm, after which several of the students and associates went out to a nearby nightclub. By the time of the accident, only a few of the firm’s students and associates remained.
 
Although nobody had a clear recollection of the events leading to the accident, it is known that Danicek and the male lawyer were dancing. He fell over backwards, landed on top of Danicek, and her head struck the dance floor.
 
The male lawyer, trying to recall the accident, stated to the Court, “…[C]an I say definitively I lost my balance because I was intoxicated? No, but I did lose my balance, and the only thing that I can point to that’s different than when I walked into this room, is that that night I was intoxicated.”
 
The Court found that, on all the evidence, the accident was due to the negligence of the male lawyer. He had breached the duty of care (which he owed to Danicek) by consuming alcohol to the extent that his impairment caused him to lose his balance and fall on top of her.
 
Danicek subsequently tried to return to work on numerous occasions but the effects of the accident ultimately prevented her return. She suffered a range of symptoms such as grogginess, severe headaches, nausea, dizziness, cognitive defects, and sensitivity to noise and light.
 
Although the Court noted that Danicek was not a “reliable reporter” of her symptoms (calling her “shrewd” and noting there were “sharp limits to the reliability of her evidence”), it found that she suffered a traumatic brain injury which has had a profound effect on her life. The medical evidence suggested she is not likely to completely, or even substantially, recover from certain of her symptoms. 
 
The Court awarded Danicek damages (non-pecuniary damages, past income loss, loss of earning capacity, cost of future care, and special damages) totaling over $5.9 million. The largest portion of that amount was $5.1 million awarded for loss of future earning capacity, due to the Court’s conclusion that Danicek will not be capable of working as a lawyer in the future.
 
The Court did not make any finding that the visit to the nightclub could be characterized as a workplace event or what might be casually referred to as an office party or a staff event. The outing did follow a regular dinner outing which appears to have been sponsored by the employer (and the employer was one of the named Defendants in the lawsuit).
 
There are many good reasons for employers to be active about limiting the consumption of alcohol by their employees. Doing so is a good strategy for ensuring the employees’ safety and for staying out of B.C.’s case reports.
 
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com.