The High Court of Australia has recently ruled that a resort-operating employer is not responsible for the actions of its big-bladdered employee.  This resolves a series of proceedings plagued by the question of whether a mistakenly aimed wee was an action committed during the course of employment.
 
CCIG Investments Pty Ltd v Schokman[1]
 
Mr Schokman was employed by CGIG as a restaurant supervisor at Daydream Island Resort off the coast of Queensland. It was a term of his contract that he would live on the island in resort accommodation, which he shared with another team leader employee.
 
One late weekend evening, Mr Schokman and his roommate were at the staff bar after finishing work. His roommate became heavily intoxicated at the bar, and when they returned to their room Mr Schokman heard him vomiting in the bathroom and walking around with hiccups. This, however, was a minor inconvenience compared to what would come later in the evening.  At some point in the night Mr Schokman was awoken to discover his roommate drunkenly urinating onto his face.  Oblivious to Mr Schokman’s protests, the incident continued for some time, causing Mr Schokman to suffer a cataplectic attack due to inhalation of the urine and consequent choking.  He ultimately contracted PTSD due to the incident.
 
Mr Schokman brought proceedings against CGIG, arguing the resort was vicariously liable for the negligent act of its employee, his roommate.
 
What is vicarious liability?
 
Vicarious liability means one’s legal responsibility for the actions of another. In an employment context, an employer is liable for the actions of its employee – but only to the extent that those actions are carried out in the course of employment.
 
Drunken act not closely connected with duties or powers of employment. 
 
The Supreme Court of Queensland originally dismissed Mr Schokman’s claim, but this finding was overturned by the Court of Appeal which found in favour of Mr Schokman.  CGIG appealed to the High Court of Australia.  The High Court, after closely examining a number of seemingly-comparable authorities, held the drunken act was not within the scope of the roommate’s.  It found that the functional, geographical, and temporal aspects of the course of employment were absent. In the words of the High Court – ‘nothing in the present case point[ed] to the drunken act in question being authorised, being in any way required by, or being incidental to, the employment’.
 
The Court distinguished this case from two other High Court cases:

• Bugge v Brown[2] where a cattle mustering employee was injured by a fire lit by a colleague to cook their lunchtime meal.  In that case the cooking of the meal was ‘intimately connected’ with the performance of the day’s task.
• Prince Alfred College[3] where the college was liable for the acts of a housemaster who was found to have sexually abused a boarder.  In that case the housemaster’s role as employee of the college was the reason he was in such a position of power, control, trust and intimacy that created the opportunity and the occasion for the wrongful acts.

Mr Schokman’s case, and the other cases examined by the High Court in considering his case, demonstrate how difficult it can be to circumscribe the boundaries of ‘employment’. However employers can take some comfort from the case and the way the court carefully examined what the cause of the damage was and whether that particular act had any connection with the employment. 
As always, prevention is better than cure.  MV Law’s Employment Lawyers can help by giving you frank, plain-English advice about employment issues, including providing you with helpful policies and processes to set parameters for your relationships with your employees.