The High Court has ruled against a Daydream Island food and beverage supervisor who sought to have his employer held vicariously liable after a co-worker sharing their room urinated onto his face while he was sleeping, causing a cataplectic attack.

The food and beverage supervisor, Aaron Shane Schokman, had a medical history of narcolepsy and associated cataplexy, described as a condition that involves sudden and brief losses of muscle tone, triggered by strong emotions.

The workers lived on the island in shared accommodation as specified under the employment terms. The other man in the room was a team leader at the restaurant, with Mr Schokman holding the more senior role.

Both were at a staff bar on November 6 2016. Mr Schokman, left at about 1am and returned to his room, while the other man, Sean Hewett, followed shortly afterwards and began complaining about his work environment and management team, the court documents says.

Mr Schokman didn’t wish to discuss work issues “at home” and the other man agreed to let him get some sleep and left the unit, taking some drinks.

At around 3am he returned and Mr Schokman heard him vomiting in the bathroom and went back to sleep. He was woken about 30 minutes later with the sensation of being unable to breath, and realised the other man was standing over his bed and urinating on his face.

Mr Schokman yelled at him to stop and after a short time Mr Hewett stepped away, went into the bathroom, and then apologised. Mr Schokman suffered a cataplectic attack as a result of the incident. The court heard that before the incident he had been functioning well with the assistance of medication for his condition. 

Mr Schokman brought proceedings against CCIG Investments Pty Ltd arguing it had breached the duty of care owed to him as an employee, and alternatively that the employer was vicariously liable for the negligent act of its employee.

The trial judge accepted that Mr Hewett had intended to use the toilet but due to his state of intoxication and the late hour, he urinated on Mr Schokman by mistake. There was nothing which would have put the employer on notice that he “may have engaged in what was bizarre conduct”, it said.

Both claims failed in the Supreme Court, but the Court of Appeal reversed the decision on the vicarious liability claim. The High Court full bench last week rejected the Court of Appeal decision.

High Court Chief Justice Susan Kiefel and Justices Stephen Gageler, Michelle Gordon and Jayne Jagot say Mr Hewett was at leisure and not at his place of work when he committed the drunken act.

“Nothing in the present case points to the drunken act in question being authorised, being in any way required by, or being incidental to, the employment. In truth, it had no real connection to it,” they say.

They rejected arguments around the circumstances of the shared accommodation and physical proximity noting that other cases “hold that mere opportunity provides an insufficiently strong connection with the employment to establish vicarious liability”.

Justices James Edelman and Simon Steward add that the “negligent act of urination” didn’t occur during work hours or at the place where the man was employed to work, and his negligent actions were not closely connected with any of his duties or powers of employment.

“He did not perform the negligent act at a time and place where his employer was permitted to be present or to monitor him,” they say.

Ligeti Partners Lawyers say the decision appears to limit the application of the vicarious liability doctrine, affording some comfort to employers in certain circumstances.

“Insurers frequently have the unenviable task of trying to make decisions on claims where vicarious liability is an issue. This task is regularly complicated by issues of indemnity,” Principal Lawyer Spencer Pascal and Senior Associate Jessica Woods say.

The High Court decision and Court of Appeal decisions are available here and here.