By Jack de Flamingh and Arsalan Azhar -
Snapshot
- A recent High Court decision has refined the scope of vicarious liability applied to employers.
- The Court considered the liability of an employer in tort for the drunken conduct of an employee who urinated on another employee while living in shared accommodation.
- The High Court found a lack of the requisite connection between the actions of the drunk employee and the scope of his employment.
In a case with some unique (if not challenging) facts, the High Court of Australia in CCIG Investments v Schokman [2023] HCA 21 has brought a degree of common sense back to when an employer may be vicariously liable for the conduct of its employees.
Background
Mr Schokman was employed by the appellant at Daydream Island Resort and Spa on the Whitsundays and placed in shared accommodation on the island. The accommodation was included in his employment contract at a subsidised rate, as was the case for his roommate and colleague Mr Hewett.
On 6 November 2016, after drinking at the staff bar, both men returned to their room. There, Mr Hewett started complaining to Mr Schokman about his work environment and the management team. Mr Hewett then left the unit and re-entered the room at 3am. Mr Schokman heard him vomiting in the bathroom.
Mr Schokman went back to sleep following the disturbance, but was awoken soon after to find Mr Hewett urinating on him. Mr Schokman suffered a cataplectic attack, which is a brief loss of voluntary muscle tone triggered by emotional stress. This left him unable to move and breathe while Mr Hewett urinated on him.
