In the matter of CCIG Investments Pty Limited v Schokman [2023] HCA 21, the plaintiff, Mr Aaron Shane Schokman, sought damages from the defendant, CCIG Investments Pty Limited, as a result of injuries sustained in the course of the plaintiff’s employment as a food and beverage supervisor at Daydream Island Resort and Spa.  

In 2016, the plaintiff commenced employment with the defendant at a resort in the Whitsunday Islands off the coast of Queensland, Daydream Island Resort and Spa. It was a requirement of his employment that he live on the island in furnished, shared accommodation. The plaintiff shared his room with another employee, Mr Hewett. In the early morning of 7 November 2016, Mr Hewett returned to the shared accommodation in an intoxicated state from the staff bar. Around 3.30am, the plaintiff was woken in a distressed condition and unable to breathe as Mr Hewett was urinating on him. The plaintiff suffered a cataplectic attack as a result of the incident, which was described as a sudden and ordinarily brief loss of voluntary muscle tone triggered by emotional distress. The plaintiff brought proceedings against the defendant, relevantly claiming that the defendant was vicariously liable as an employer for the negligent act of Mr Hewett because that act was done in the course or scope of his employment. 

Primary Judge

The trial judge did not accept that the actions of Mr Hewett were committed in the course of his employment with the defendant. Whilst his Honour accepted that the occasion for the tort committed by Mr Hewett arose out of the requirement of shared accommodation, his Honour did not consider that it was a fair allocation of the consequences of the risk arising to impose vicarious liability on the employer for the drunken misadventure of Mr Hewett. 

Court of Appeal

The Court of Appeal allowed the plaintiff’s appeal. Their Honours relied on the terms of Mr Hewett’s employment to find the requisite connection between Mr Hewett’s tortious act and his employment. As Mr Hewett was obliged to occupy the room as an employee under his employment contract, not as a stranger, it followed that there was the requisite connection between his employment and his actions. 

High Court of Australia

The High Court of Australia held that the defendant was not liable for the actions of Mr Hewett. The question of whether a wrongful act was committed in the course or scope of employment depends 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. The High Court of Australia held that nothing in this case pointed to the drunken act of Mr Hewett being authorised, being in any way required by, or being incidental to, his employment. The High Court of Australia ultimately found that Mr Hewett’s drunken actions had no real connection to his employment. 

Emily Wright and our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, including a medical negligence claim, please reach out to Emily Wright and Littles Lawyers today. 

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