employers owe a duty of care towards their employees to protect
them from the actions of other workers that cause injury or harm in
the course of employment. This does not mean the person who caused
the injury is not also liable. Both the employer and the worker who
caused injury can be found liable.
In this article, we explore the case of Schokman v CCIG Investments Pty Ltd [2021]
QSC 120 and Schokman v CCIG Investments Pty Ltd [2022]
QCA 38 where the Court considered in detail the concept of
vicarious liability.
What is vicarious liability in personal injury law?
Vicarious liability is where an employer may be held legally
responsible for the actions of employees (and others) for harm
caused in the workplace. The employer need not have specifically or
directly caused the harm themselves.
Background
In April 2021, the Supreme Court in Rockhampton considered a
highly unusual workers’ compensation claim. Mr Schokman,
the plaintiff, was a 25 year old restaurant supervisor at Daydream
Island Resort. A condition of his employment was to share
accommodation at the resort with his co-worker and subordinate, Mr
Hewett.
Mr Schokman had underlying conditions of narcolepsy (a sleep
disorder) and cataplexy (a sudden and brief loss of voluntary
muscle tone triggered by emotional stress) which was well
controlled by medication prior to the incident.
In the early hours of 7 November 2016, Mr Schokman awoke choking
due to Mr Hewett urinating on his face, and in his mouth. He
immediately suffered an attack of cataplexy; as well as insomnia,
post-traumatic stress disorder, anxiety and depression later
arising from the incident.
In defending the claim, the employer submitted Mr Hewett was so
intoxicated he did not know where he was when the urination event
occurred Indeed, the Court determined the incident occurred because
Mr Hewett was ‘in a state of semi consciousness
precipitated by his level of intoxication‘.
Mr Schokman claimed his employer was negligent, breached the
duty of care owed to him, and was vicariously liable for the
conduct of its employee, Mr Hewett.
Supreme Court determines employer did not breach its duty of
care
The Supreme Court accepted Mr Schokman sustained injury and that
Mr Hewett committed a serious assault on Mr Schokman.
However, the Court rejected that the employer was vicariously
liable for the conduct of a drunk employee because the incident did
not occur in the course of employment. The Court held the risk that
Mr Schokman would have a confrontation with a co-worker or roommate
was foreseeable however, the urination event was not foreseeable
for the employer to prevent or respond to the risk.
The Court determined there was no history of Mr Hewett becoming
intoxicated or having an intoxication-related incident that would
put the employer on notice that Mr Hewett may have engaged in
bizarre conduct like the urination event.
Mr Schokman appealed the decision of the Supreme Court, to the
Queensland Court of Appeal.
Court of Appeal found employer was vicariously liable
In March 2022, the Queensland Court of Appeal overturned the
decision at first instance, finding in favour of Mr Schokman. The
Court of Appeal determined that:
- It was a term of Mr Schokman’s and Mr Hewett’s
employment that they reside in the staff accommodation on the
island and a room be assigned to them to share; - Whilst Mr Schokman and Mr Hewett remained employed at the
resort, they were required to live there and once they ceased
employment, they were required to leave; - Mr Hewett was not occupying the room as a stranger to Mr
Schokman, but instead as a co-worker and an employee pursuant to
his employment contract; - The terms of Mr Hewett’s employment required him to take
reasonable care so that his acts did not adversely affect the
health and safety of other persons.
The Court of Appeal found Mr Hewett’s conduct was not an act
‘entirely outside the relation of master and servant and
therefore regarded as the act of a stranger’, and that
there was sufficient connection between Mr Hewett’s employment
and the event due to the provision of shared accommodation by the
employer.
The Court of Appeal accepted Mr Schokman’s argument that the
employer was vicariously liable for the wrongful conduct of its
intoxicated employee.
Appeal to the High Court
On 16 September 2022, the High Court of Australia heard the
employer’s application for special leave to appeal the
Queensland Court of Appeal’s decision.
The employer submitted that – acts in which an employer can be
held vicariously liable must bear a sensible relation to the
activities for which the employee is employed to do within the
scope of employment.
Mr Schokman’s representatives submitted that as a
requirement of practicality of employment, the provision of shared
accommodation was a contractual requisite provided by the employer.
Therefore, matters incidental to employment, such as cooking a
meal, or maintaining personal hygiene, are connected to
employment.
The general obligation to take reasonable care that the
employees’ acts did not adversely affect the health and safety
of other persons whilst on the island was an obligation which
governed the occupation of the shared accommodation.
The High Court granted the application for special leave.
Get help from a worker’s compensation lawyer
Hall Payne Lawyers welcomes the High Court’s consideration
of the issue of vicarious liability in the context this case.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.