Daydream Island Employer Liable After Employee Urinates on Co-Worker in Shared Employment Housing

DATE PUBLISHED: March 24, 2022

key takeaways

The Queensland Court of Appeal overturned a recent decision that an employer was not vicariously liable after an employee urinated on another employee's face.
Three key factors in the decision was that the employer required its employees to share accommodation, allocated rooms to their employees based on their working duties, and routinely reviewed the room arrangements.

WHAT CAN AN EMPLOYER BE VICARIOUSLY LIABLE FOR?

In Schokman v. CCIG Investments Pty Ltd [2022] QCA 38, the Queensland Court of Appeal has taken a very expansive view on the concept of vicarious liability by overturning a decision of Justice Crow in the Supreme Court of Rockhampton.

the case

Justice Crow had found at first instance that the Daydream Island operators were not vicariously liable when a co-worker stood over a fellow worker he shared accommodation with and urinated on his face. His Honour stated the "fair allocation of the consequences of the risk created by [the Employer's] business" pointed away from imposing liability on the employer. Justice Crow had also found that this was not an intentional act of revenge but rather an act of intoxication.

the appeal

The Court of Appeal, however, thought it critical in imposing vicarious liability that the employer:

Required its employees to share accommodation facilities on the island;
Allocated rooms to employees according to work duties at the resort; and
Would routinely review each month whether the room should be reallocated.

The Reasoning

To support their reasoning, the Court of Appeal, rather than relying on recent jurisprudence, went back to the 1919 High Court Authority of Bugge v. Brown[1], where it was said:

"The limit of the rule – expressed in the widest form by the phrase "the course of the employment" or "the sphere of the employment" – is when the servant so acts as to be in effect of a stranger in relation to his employer with respect to the act he has committed, so that act is in law the unauthorised act of a stranger…. This is the root of the matter …The act of the servant complained of is regarded as outside the relation, and as that of a stranger: (a) If he did not assume to act within the scope of his employment; or (b) If what he did was a thing so remote from his duty as to be altogether outside of, and unconnected with his employment."

Adapting this reasoning, the Queensland Court of Appeal at [42] said:

"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."

This reasoning continues the trend of a substantial broadening of the scope of the doctrine of vicarious liability after the High Court's decision in Prince Alfred College.[2]

Prior to the Prince Alfred College case, the traditional method of imposing vicarious liability was that the employee's wrongful act had to be committed in the course of or within the scope of their employment. An act or omission was within the scope of employment if it was :

Specifically authorised by an employer; or
An act that was so connected with the authorised act it might be regarded as a mode, although an improper mode, of doing it.

Of course, difficulties then arose in the sexual abuse context as to whether such an act could ever be said to be in the course of or scope of employment. In the Prince Alfred College case, the test was expanded to include consideration of any "special role" that the employer had assigned to the employee and whether the features of that role including "authority, power, trust, control and the ability to achieve intimacy with the victim" provided the "occasion" for the wrongful act. None of those features appeared here.

conclusion

The Court of Appeal's approach would tend to suggest that if employment played only a circumstantial rather than causative role, vicarious liability would be sheeted home to the employer.

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