High Court: October 2023

NEGLIGENCE

Vicarious liability

In CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (2 August 2023), the High Court was required to determine whether an employer was liable for a tortious act committed by their employee, on another employee, in shared staff accommodation.

Mr Schokman (the ‘respondent’) was employed by CCIG (the ‘appellant’) to work at a resort in the Whitsunday Islands off the coast of Queensland. It was a requirement of Mr Schokman’s employment that he live on the island in shared accommodation. Mr Schokman shared his room with another CCIG employee, Mr Hewett. At about 3:30am one morning, Mr Hewett returned to the shared accommodation heavily intoxicated after spending some time at the staff bar. Mr Hewett unintentionally urinated on Mr Schokman causing the latter to suffer a cataplectic attack. A cataplectic attack is a sudden and brief loss of voluntary muscle tone triggered by emotional distress. Mr Schokman brought proceedings against CCIG claiming that CCIG was vicariously liable as an employer for Mr Hewett’s negligence because it occurred within the scope of his employment.

At first instance, the trial judge did not accept that Mr Hewett’s act was committed in the course of his employment by CCIG. The trial judge accepted the tort was committed in shared accommodation provided by CCIG but did not consider that it was fair to impose vicarious liability, for Mr Hewett’s drunken misadventure, on CCIG. Mr Schokman successfully appealed to the Court of Appeal. McMurdo JA (Fraser and Mullins JJA agreeing) considered this case was analogous to Bugge v Brown (1919) 26 CLR 110. The Court of Appeal held there was a requisite connection between the employment and Mr Hewett’s actions because Mr Hewett was obliged to occupy the shared accommodation, not as a stranger but as an employee, under the terms of his employment contract.