By Dr Laura Sowden, Partner, and Theresa Au, Law Graduate

The High Court allowed an appeal from the Supreme Court of Queensland about whether an employer was liable for its employee urinating on another while they were living in shared staff accommodation.  

What happened?

The employee respondent, Mr S commenced employment with the appellant employer, Daydream Island Resort and Spa (DIRS) in late 2016. Under his contract of employment, Mr S had to live in shared staff accommodation with Mr H.

One late evening, Mr H returned to their room intoxicated and unintentionally urinated on Mr S causing him to choke. Mr S suffered then a cataplectic attack –  which is described as a sudden and ordinarily brief loss of voluntary muscle tone which is triggered by emotional stress.

Litigation history

QLD Supreme Court Proceedings

Mr S commenced proceedings in the Supreme Court against DIRS claiming (1) damages for breach of DIRS’s duty of care owed to him as an employee, and (2) in the alternative that DIRS was vicariously liable for the negligent act of Mr H. Both claims failed.

The QLD Supreme Court found the actions of Mr H were in the course of his employment with DIRS. Then it looked at whether there was a link between DIRS and the wrongdoing that would justify DIRS being liable for Mr H’s wrongdoing.

The QLD Supreme Court accepted the incident arose because of the requirement to share accommodation. However, it considered it was unfair to impose vicarious liability on DIRS for Mr H’s misadventure. DIRS could not have reasonably anticipated Mr H’s conduct as he had no history of becoming intoxicated.

Court of Appeal

Mr S appealed against the decision about the vicarious liability claim. The QLD Court of Appeal found that there was a connection between Mr H’s employment and his conduct. Specifically, it was a term of Mr H’s employment that he live in the room assigned to him in the shared staff accommodation. The QLD Court of Appeal concluded that was sufficient and DIRS was liable for Mr H’s conduct.

Was DIRS vicariously liable?

In short no.

The High Court confirmed that an employer can only be held liable for acts totally connected with the employment.

Connected means the conduct occurred during the course or scope of the employee’s employment. The course of employment comprises acts of an employee that are authorised (whether directed, permitted or ratified by the employer expressly or impliedly); as well as unauthorised acts that have some sufficient connection to the work that the employee is employed to do.

The High Court significantly considered Mr H was at leisure and not at his place of work when he committed the wrongdoing. The conduct occurred outside the carrying out of his duties or in the period between carrying them out.

The High Court concluded Mr H was acting in accordance with his employment contract by sharing the accommodation provided and being present in it. However, that did not provide a proper connection to the employment with DIRS – it was not enough to make DIRS liable for Mr H’s conduct.

The High Court also acknowledged that while the QLD Court of Appeal found a link between Mr H’s conduct and his employment through provisions of the employment contract, those provisions did not concern the work he was engaged to do but rather the obligations concerning the accommodation regulations and work health and safety in the workplace.

The appeal was accepted on that basis and the QLD Court of Appeal decision was overturned. This meant DIRS was not liable for Mr H’s conduct in urinating on Mr S.

What does this mean?

Employers are unlikely to be held vicariously liable for the conduct of staff outside of working hours and conduct totally unconnected to the employment.

Nevertheless, if employers are providing mandatory accommodation to staff they still owe a duty of care to, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (2 August 2023)