High Court finds employer not vicariously liable for "negligent urination" by employee
Posted on August 24, 2023
In the recent decision of CCIG Investments Pty Ltd v Schokman [2023] HCA 21, the High Court has held that an employer was not vicariously liable for an employee’s drunken act of urinating on another worker in shared accommodation provided by the employer.
Vicarious liability is the responsibility an employer has for the actions of their employees whilst at work.
This decision provides much needed clarity on the concept of vicarious liability by confirming that a sufficiently “close connection” between the wrongful act and the employee’s scope of employment is required, and that it will not be sufficient for the employment merely to provide the context and opportunity for the wrongful act to extend liability to the employer.
Background
The plaintiff, Mr Schokman and his colleague Mr Hewett were both employed by CCIG Investments (employer) to work in the restaurant at the Daydream Island Resort and Spa. It was a requirement of their employment that they live in shared accommodation provided by the employer.
In the early morning of 7 November 2016, Mr Hewett returned to the shared accommodation in an intoxicated state having been drinking at the staff bar. Mr Schokman woke to Mr Hewett standing over his bed and urinating on his face. As a result of the urination incident Mr Schokman’s pre-existing medical conditions were exacerbated, and he also suffered post-traumatic stress disorder. It was common ground that the urination incident was an accident.
Mr Schokman brought a claim against his employer claiming that the employer was vicariously liable for the negligent act of Mr Hewett. In the first instance, the Queensland Supreme court dismissed Mr Schokman’s claim on the basis that Mr Hewett’s urination incident was not committed in the course of his employment. The court held that although the occasion arose out of the requirement for shared accommodation, it would not be fair to impose vicarious liability on the employer for the drunken misadventure of Mr Hewett. There was no history of Mr Hewett becoming intoxicated that would have put the employer on notice that Mr Hewett may have engaged in this ‘bizarre’ conduct.
On appeal, the Court of Appeal held that the requisite connection arose from the employer’s requirement that Mr Hewett live in the shared accommodation, and it followed that there was the requisite connection between his employment and his actions.
Decision
The High Court unanimously held that the employer was not liable for the actions of Mr Hewett, finding that Mr Hewett’s actions had nothing to do with what he was employed to do.
Although the shared accommodation provided Mr Hewett with an opportunity to commit the wrongful act, it did not provide a proper connection with the employment to establish vicarious liability. The High Court noted that the most the shared accommodation did was create physical proximity between Mr Hewett and Mr Schokman and the opportunity for Mr Hewett’s drunk actions to affect Mr Schokman.
The High Court rejected the Court of Appeal’s finding that the case was analogous to the those in Bugge v Brown[1]. In that case, the employer was held to be vicariously liable for the actions of its employee in starting a fire during his break from work, which spread and caused damage to a neighboring property.
Unlike this case, the employee’s act of lighting the fire to cook his meal was a requirement of, and authorized by, the employment and was intimately connected with the employee’s performance of his daily tasks. The High Court noted that Mr Hewett was at leisure and not at his place of work when the urination incident occurred, that Mr Hewett could only be said to be acting in accordance with his employment contract by sharing the accommodation and nothing in this case points to the urination incident in question being authorized, being in any way required by, or being incidental to, the employment.
In summary, the High Court held that the mere opportunity for an act was an insufficient connection to Mr Hewett’s employment to establish vicarious liability. Most importantly it was noted that “an act done when the employee was on a “frolic of [their] own” will not attract liability” and consistent with the policy of law, “an employer should not be held liable for acts totally unconnected with the employment”.
Key Takeaways
Whether an employer should be held responsible for the wrongful acts of an employee, will depend on the circumstances of the particular case, including identification of what the employee was actually employed to do and held out as being employed to do. There must be a sufficient connection to the employment to establish vicarious liability.
Please contact our workplace relations team if you require assistance.
[1] (1919) 26 CLR 110.
