Employers owe a duty of care to their employees to take reasonable care to avoid exposing them to unnecessary risks of injury. What happens when such risks arise outside of an employer's usual work hours involving the consumption of alcohol? This issue was considered by the Supreme Court of Queensland in their recent decision of Schokman v CCIG Investments Pty Ltd  QSC 120.
In that case, Aaron Schokman was a 25-year-old hospitality worker, employed by CCIG Investments Pty Ltd (the employer) to work as the supervisor at the "Mermaids" restaurant at the Daydream Island Resort and Spa. It was a term of Mr Schokman's employment contract that he live in shared accommodation. Mr Schokman shared his room with a co-worker, Mr Hewett, who was employed as a team leader, which was an inferior position to that held by Mr Schokman.
Mr Schokman made complaints to management about sharing a room with Mr Hewett. At no time did Mr Schokman complain about any specific safety issues with sharing a room with Mr Hewett, rather his complaints related to not wanting to share a room with a subordinate employee and Mr Hewett's being 'odd.'
In the early hours of 7 November 2016, Mr Hewett returned to the shared room highly intoxicated. About half an hour after his return, Mr Schokman alleges he woke up to Mr Hewett urinating on his face and in his mouth.
It was accepted at trial that Mr Hewett's actions (referred to as the 'urination event') were an accident.
Mr Schokman suffered from two serious pre-existing medical conditions - narcolepsy (a sleep disorder characterised by overwhelming daytime drowsiness and sudden attacks of sleep) and cataplexy (a sudden and ordinarily brief loss of voluntary muscle tone triggered by strong emotions such as laughter or emotional stress). The employer was made aware of these conditions when Mr Schokman accepted his offer of employment, though Mr Schokman reported being able to function at close to 100% and that his conditions would not affect his employment.
It was accepted at trial that both of these conditions had improved significantly and were well controlled by medication at the time of the urination event. The Court also accepted that Mr Schokman had suffered from a permanent aggravation of his cataplexy, due to the anxiety and stress caused by the 'urination event.'
Mr Schokman ultimately failed to prove his employer breached their duty of care. The Court found:
While this is a highly unusual case, it provides some key learnings for employers:
Article written by Tony Rosenthal (Partner) and Emma Tunn (Solicitor).
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