An unusual urinating incident has prompted consideration of the scope of employer’s vicarious liability. A broad interpretation of the requisite connection to employment in Schokman v CCIG Investments Pty Ltd serves as a caution for employers that should not be overlooked.
- The QLD Court of Appeal had to consider whether an employer was vicariously liable for the after-hours conduct of its intoxicated employee in shared staffing accommodation.
The plaintiff shared staffing accommodation at Daydream Island with one other employee, Mr Hewett. Both were employed by the defendant.
On 7 November 2016, a drunken misadventure transpired.
The plaintiff was asleep in their accommodation when Mr Hewitt had returned to their room intoxicated. The plaintiff awoke to Mr Hewett standing over him and urinating on his face.
The plaintiff suffered from an exacerbation of his cataplexy2 and narcolepsy following the incident in addition to PTSD and an adjustment disorder. He brought action against the defendant employer, alleging that the employer’s negligence caused his injuries.
The decision at trial
The Queensland Supreme Court of Rockhampton (Crow, J) found that liability could not be established. Specifically:
- The defendant employer (CCIG) did not owe the plaintiff employee a duty of care
- Although the employee’s actions in urinating on the claimant were negligent, the defendant employer was not vicariously liable for the actions of the employee.
In coming to this conclusion, Crow J, referred to decision of Prince Alfred College Inc v ADC3 and applied the test in Canadian decision Bazley v Curry4 stating that there was not a connection or nexus between the employment enterprise and the wrong that justified the imposition of vicarious liability on the employer.
Judgement was given in favour of the defendant.
The issues on appeal
The plaintiff appealed the finding relating to vicarious liability but did not appeal the finding relating to the employer’s duty of care.
The decision on appeal
The Court of Appeal accepted the appellant’s arguments. The trial judge was incorrect in applying the test applied in Bazley v Curry and the facts of the matter suggested that there was a requisite connection between Mr Hewett’s employment and the employee’s actions. In coming to this conclusion, the Court of Appeal considered:
- It was a term of the appellant and Mr Hewett’s employment to share a room that was provided to them;
- They were required to live in the accommodation while employed at the resort, and required to leave when their employment ended;
- The terms of Mr Hewett’s employment required him to take reasonable care that his acts did not adversely affect the health and safety of other persons. That was an obligation which governed his occupation of this room; and
- Mr Hewett was not occupying the room as a stranger, but instead as an employee, pursuant to and under the obligations of his employment contract.
The Court of Appeal looked back over 100 years and drew analogy to the matter of Bugge v Brown5, where an employer provided his employee a meal to cook during employment and was found to be vicariously liable for the lighting of a fire which spread to a nearby farm. In that case, the act of the fire occurred during the employer’s provision of sustenance to its employee. In this matter, the Court of Appeal found the act occurred in the employer’s provision of shelter to Mr Hewett.
Implications for you
A broad interpretation of what is required to draw a connection between an employee’s actions and their employment could prove to be problematic for a range of employers and their insurers, particularly those that provide shared accommodation to their staff. Even the most far-fetched situations could potentially fall within the ambit of employer’s liability.
  QCA 38.
 A sudden and usually brief loss of voluntary muscle tone triggered by strong emotions.
 Prince Alfred College Inc v ADC (2016) 258 CLR 134.
 Bazley v Curry (1999) 174 DLR (4th) 45.
 (1919) 26 CLR 110.