Thanks to the High Court, we now know that injuries sustained from light fittings during adult-aerobics in employer-funded motel accommodation during a work trip will not be compensable (see Comcare v PVYW [2013] HCA 41 (30 October 2013)). But what about car accident injuries sustained by tipsy workers en route from an end of year work function?

The case of Scharrer v Redrock Co Pty Limited [2010] NSWCA 365 looked at this very question, after an employee sustained an injury whilst travelling home from her work Christmas party in her work-provided vehicle.  The employee was found to have a blood alcohol reading of 0.124 after the accident.

The employee argued that,  because the employer had provided her with a work vehicle and had authorized, encouraged and permitted her to use the vehicle to drive to and from work, any injury sustained in the course of doing so should be compensable. On appeal, the Court disagreed. The employer had prohibited use of the car while intoxicated, such that there was no authorization, encouragement or permission.

The position is less straight forward in other jurisdictions: in Ontario,  Canada an employee was awarded C$300,000 in compensation after being injured in a car accident whilst intoxicated, following a work Christmas event. The employee's damages were assessed at close to C$1.2m, although the employee was assessed to be predominantly responsible for her loss. Nonetheless, the trial judge apportioned some liability to the employer for, in essence, failing to stop the employee getting in her car. This was despite the employer having a "cab-fare for car keys" policy.

Quite apart from liability, employees driving under the influence is problematic from every angle, not least the risk of serious harm to employees and other drivers. Employers should put in place policies which prohibit driving in connection with work whilst under the influence. The usual seasonal reminders about inappropriate behaviour should also be circulated prior to events. Employers can also address potential driving issues by taking practical steps such as the following:

  • ensuring that party venues are public transport-accessible, or otherwise arranging transport to and from venues;
  • setting the party time to account for the seasonal demand for taxis - e.g., finishing the party at a time when it is still safe for people to travel home using public transport;
  • considering accommodation options for persons living a long distance from the party venue (although this type of offering raises additional issues, and would need to be carefully managed);
  • providing cab charges, hire cars, and other modes of transport at the employer's cost; and
  • providing portable (and reliable) blood alcohol level testers for persons wishing to drive.