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Rude awakening for Employers Employer Liability for Employee’s Drunken Act

Updated: Nov 18, 2022

When is an employer liable for the acts of its intoxicated employees?

A recent Queensland case considered this issue following an unpleasant incident which occurred in shared employee accommodation, where a drunk employee urinated on another worker’s face.

First, what is vicarious liability?

Vicarious liability refers to an employer’s legal responsibility for an employee’s wrongful acts, where the employee’s acts occur in the workplace or are committed in connection with the employee’s employment. Examples of this include can include conduct at work functions such as Christmas parties, work-related conferences and work-related travel.

Facts of the case

Two employees, Mr Hewett and Mr Schokman were employed by the Daydream Island Resort in the Whitsundays as a food and beverage team leader and supervisor. Their employer required them to reside in staff accommodation and to share a room together on the island.

One evening, Mr Hewett was drinking at the staff bar while Mr Schokman was asleep in their shared accommodation. Mr Schokman later awoke to the sounds of Mr Hewett vomiting in their shared bathroom. Mr Schokman went back to sleep and was later awoken to a feeling of being unable to breathe. He realised Mr Hewett was standing over him urinating on his face. Mr Hewett was sleep walking at the time.

Mr Schokman suffered a cataplectic attack, which is a sudden and usually brief loss of voluntary muscle tone triggered by strong emotions. Mr Schokman had previously been diagnosed with cataplexy and narcolepsy, a sleep disorder characterised by excessive daytime sleepiness.

Mr Schokman sued his employer for breaching its duty of care to him as an employee. Mr Schokman argued his employer was vicariously liable for Mr Hewett’s negligent action of urinating on him.

Mr Schokman claimed damages for past loss of income, medical expenses and damages for pain and suffering. He also claimed damages for loss of economic capacity on the basis that the incident worsened his cataplexy and restricted him to performing part time work, as opposed to full time work in his career as an academic.

The initial decision – the Supreme Court of Queensland

The Supreme Court of Queensland found that while Mr Hewett had committed a negligent act against Mr Schokman, the act did not occur during the course of his employment. The Court described Mr Hewett’s toileting act as a “drunken misadventure” and did not consider it fair to impose vicarious liability on the employer for Mr Hewett’s “bizarre conduct”.

Mr Schokman appealed the finding that his employer was not vicariously liable for Mr Hewett’s actions.

The final decision – the Court of Appeal

The Court of Appeal found the employer was vicariously liable for Mr Hewett’s actions because:

1. The employer required its employees to share accommodation on the island and to live in the room assigned to them

2. The terms of Mr Hewett's employment required him to take reasonable care to ensure his acts did not adversely affect the health and safety of others, including Mr Schokman

3. Mr Hewett was not occupying the room as a stranger, but as an employee as required by his employment contract

The Court found that these factors demonstrated that there was a sufficient connection between Mr Hewett’s employment and his actions. The Court held the employer was vicariously liable for Mr Hewett’s negligent actions and the loss it caused Mr Schokman to suffer.

The employer was required to pay Mr Schokman $431,738.88 in damages.

Key takeaways

This decision is an important reminder for employers that they can be liable for the acts committed by their employees in a range of circumstances, where there is a sufficient connection to the workplace – irrespective of whether their employees are attending work related events, social functions or residing in shared accommodation.

If you have any questions about this case or if you are an employer who requires advice about your legal obligations to your employees, please contact a member of our employment law team.

John Sneddon, Director

(07) 3307 4504

Kimberley Forman, Director

(07) 3307 4523

Ruby Nielsen, Senior Associate

(07) 3307 4551

Emma Lewis, Lawyer

(07) 3307 4546

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