Last year, we wrote about a scandalous case where a man was urinated on by a fellow employee. Our article Are employers liable for a drunk employee’s behaviour? centred around who was liable for that employee’s behaviour as the employee was intoxicated at the time.
Since publishing that article, there have been further developments in the case which include an appeal and an application to the High Court.
To recap on the case, Mr Schokman (the Plaintiff) was urinated on by an intoxicated fellow employee, Mr Hewett, with whom he was sharing staff accommodation organised by CCIG Investments Pty Ltd (the Defendant) at the time. Mr Schokman brought a claim against the Defendant, stating they had breached their duty of care.
Initially, the trial judge found in favour of the Defendant, ruling CCIG Investments Pty Ltd was not vicariously liable for the actions of Mr Hewett. This was due to the act occurring outside the course of Mr Hewett’s employment.
The Plaintiff lodged an appeal on this point, which was heard on 11 October 2021.
In response, the Defendant further argued the incident was too remote and it would be unreasonable to be held vicariously liable for the drunken misadventure of Mr Hewett.
However, judgement was delivered in favour of the Plaintiff on 18 March 2022 and Mr Schokman was awarded $431,738.88 in damages.
The Queensland Court of Appeal considered several factors to determine whether there was a sufficient connection between Mr Hewett’s employment and the incident.
These factors included that Mr Hewett:
- was required to reside in staff accommodation as part of his employment contract;
- was occupying the room he was assigned as an employee (not as a guest); and
- as an employee, was required to take reasonable care to ensure his actions did not adversely affect the health and safety of other persons, including Mr Schokman, with whom he shared the room.
The Court of Appeal was able to compare the current case to an earlier decision of the High Court in Bugge v Brown (1919) 26 CLR 110, in which the employer there was found to be liable for an employee’s negligent actions in starting a fire whilst preparing a meal provided by the employer.
On this basis, the Court of Appeal held the Defendant was vicariously liable for Mr Hewett’s actions.
The Defendant has since lodged an application to appeal to the High Court.