WCRA: Bizarre assault not a breach of duty

Schokman v CCIG Investments Pty Ltd [2021] QSC 120

Crow J

The Plaintiff was employed on Daydream Island as a food and beverage supervisor. He suffered from narcolepsy and cataplexy, which was medicated and he had an arrangement for storage of his medication with a nurse. The Plaintiff’s contract required him to live on the resort in shared accommodation. The Plaintiff was required to share accommodation with Mr Hewett who was his subordinate. The Plaintiff complained about sharing accommodation with a subordinate and stated Mr Hewett was odd. 

The subject incident of the claim arose when the Plaintiff awoke to Mr Hewett urinating on the Plaintiff in an intoxicated state. The Plaintiff in leaving the room had a catapletic attack.

His Honour found that the offending conduct was outside of the course of employment to attract vicarious liability:

[28] ” I do not consider it a fair allocation of the consequence of the risk to impose vicarious liability upon the defendant employer for the drunken misadventure of Mr Hewett in respect of his toileting.”

It was accepted that Defendant owed a duty of care [77] and it extended to the accommodation [85] – [86], together with the relevant risk of an unpleasant roommate [92], which included a risk that was reasonably foreseeable [93]-[101].

The Plaintiff fell short when identifying the precautions the employer ought to have taken to prevent the incident. The Plaintiff advanced that appropriate alcohol and conduct policies would have prevented the incident. His Honour was not persuaded:

[103] The precautions relied upon by the plaintiff are particularised as “breach of duty” at paragraph 21 of the Further Amended Statement of Claim as follows:

“21.The urination event was caused by the breach of duty of the defendant by:

(a) in circumstances where the plaintiff was forced to share accommodation with another employee, failing to carry out any or any appropriate screening of potential room mates to assess their suitability as cohabitants;

(b) failing to conduct any or any appropriate medical checks of Hewett in circumstances where he had a history of sleep walking;

(c) failing to obtain a complete medical history from Hewett;

(d) failing to respond to the plaintiff’s complaints with respect to Hewett’s behaviour when made prior to 7 November 2016;

(e) failing to instruct Hewett appropriately or at all with respect to appropriate levels of conduct within the accommodation;

(f) failing to instruct Hewett appropriately or at all with respect to appropriate levels of alcohol consumption whilst on Daydream Island;

 (g) insisting Hewett reside in close proximity to the plaintiff in circumstances where the plaintiff and Hewett worked together and Hewett was the plaintiff’s subordinate;

(h) failing to respond to Hewett’s disclosure that he had a history of sleep walking by moving him away from the plaintiff.”

[104] In examining the suggested precautions set out in paragraph 21 of the SFASOC, the principles in s 305B(2) must be taken into account. In that regard I consider that the probability that harm would occur if care were not taken to be low. Whilst the risk of such harm is plainly foreseeable in the sense of not being farfetched and fanciful, and is properly assessed above as being not insignificant, that must be weighed against the absence of any evidence to suggest that any similar incident or any incident involving a confrontation or unpleasant personal interaction between roommates at a staff accommodation facility had caused any harm.

[105] As to the likely seriousness of the harm, even if there was an unpleasant interaction or confrontation between roommates, the likelihood is that no harm would occur or minimal harm may occur in terms of a physical confrontation between roommates.

[124] The onus of proof on the plaintiff to prove breach of duty of care faces the difficulty of not only the lack of detail as to what appropriate alcohol or conduct policies ought to included, but what the defendant’s polices did include. In these circumstances, I cannot find that the defendant is in breach of its duty of care to the plaintiff in failing to have an appropriate alcohol policy and an appropriate code of conduct policy in respect of its shared accommodation facility. The lack of detail of such policies also creates significant issues in respect of causation.

The knock-on effect was that causation under s.305D of the Workers’ Compensation and Rehabilitation Act 2003 was not satisfied [129]-131].

As noted, his Honour found that the tort by Mr Hewett was outside of the scope of employment and there was “no connection or nexus between the employment enterprise and the wrong committed by Mr Hewett” [138]. Hence, the employer was not vicariously liable for Mr Hewett’s tort.

Judgment was entered for the Defendant.

David Cormack

Brisbane Barrister and Mediator.

NB: the decision has since been set aside on appeal Schokman v CCIG Investments Pty Ltd [2022] QCA 38

[43] The present case is analogous to Bugge v Brown, although the act in this case occurred in the course of the provision of shelter, rather than sustenance, to the employee. It was a term of Hewett’s employment that he reside in the staff accommodation on the island, and more particularly in the room assigned to him. Whilst he remained employed at the resort, he was required to live there, and once he ceased to be employed at the resort, he was required to leave. The terms of his employment required him to take reasonable care that his acts did not adversely affect the health and safety of other persons. That was an obligation which governed his occupation of this room. He was not occupying the room as a stranger, but instead as an employee, pursuant to and under the obligations of his employment contract. There was in this case the requisite connection between his employment and the employee’s actions. The respondent should have been held to be vicariously liable for his negligence and the loss which it caused.

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