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Schokman v CCIG Investments Pty Ltd[2021] QSC 120

Schokman v CCIG Investments Pty Ltd[2021] QSC 120

SUPREME COURT OF QUEENSLAND

CITATION:

Schokman v CCIG Investments Pty Ltd [2021] QSC 120

PARTIES:

AARON SHANE SCHOKMAN

(plaintiff)

v

CCIG INVESTMENTS PTY LTD

ABN 57 602 889 145

(defendant)

FILE NO/S:

SC No 264 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

27 May 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

12, 13, 14 April 2021

JUDGE:

Crow J

ORDER:

  1. Judgment for the defendant against the plaintiff.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION – GENERALLY – where the plaintiff was an employee of the defendant on the Daydream Island Resort – where the defendant owed the plaintiff a duty of care – where the plaintiff, as a condition of their employment, was required to share accommodation with another of the defendant’s employees – where the plaintiff, while sleeping at night, was urinated on by the other employee with whom the plaintiff was billeted – where the plaintiff had underlying conditions, namely cataplexy and narcolepsy, which were exasperated by the incident – where no relevant employee policies or codes of conduct where placed in evidence – whether the scope and content of the defendant’s duty encapsulated such an incident – whether the defendant breached their duty of care

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – UNDER CIVIL LIABILITY LEGISLATION – GENERALLY – where the plaintiff was an employee of the defendant on the Daydream Island Resort – where the plaintiff was urinated on while in employee accommodation – whether the defendant breached their duty of care – whether the breach of duty was a necessary condition of the injury suffered

TORTS – GENERALLY – VICARIOUS LIABILITY, NON-DELEGABLE DUTY AND RELATED MATTERS – VICARIOUS LIABILITY – where the plaintiff was an employee of the defendant on the Daydream Island Resort – where the plaintiff was urinated on while in employee accommodation – where another employee of the defendant committed a tort on the plaintiff – whether the defendant is vicariously liable for their employee’s tort

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT – GENERALLY – where the plaintiff suffered an injury in the course of their employment – where the plaintiff claims damages for personal injury – where damages are assessed under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D, s 305E

Bazley v Curry (1999) 174 DLR (4th) 45; [1999] 2 SCR 534, cited
Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292, cited
Jury v Commissioner for Railways (NSW) (1935) 53 CLR 273; [1935] HCA 29, followed
Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304, applied
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315, followed
Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2017] HCA 37, cited
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, followed
Walker v Green Mountain Food Processing Ltd [2020] QSC 329, cited

COUNSEL:

R J Lynch, with J P D Trost, for the plaintiff
G C O'Driscoll for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Cooper Grace Ward for the defendant

Introduction

  1. [1]
    The plaintiff, Aaron Schokman, was born in Sydney on 30 June 1991. Mr Schokman was active as a child and teenager, particularly as a competitive swimmer. At the end of 2008 Mr Schokman graduated high school with an HSC ranking of 95, placing him in the top five per cent of graduating students in New South Wales. In 2009, Mr Schokman commenced a Bachelor of Science at the University of Sydney, majoring in psychology. At the end of his second year in late 2010, Mr Schokman travelled to Europe for a holiday. Whilst in Vienna Mr Schokman contracted influenza.
  2. [2]
    In early 2011 when Mr Schokman returned to Australia to complete his university studies, he found that he was constantly extremely fatigued; he would have difficulty staying awake whilst driving a motor vehicle and would fall asleep during lectures. During his final exams of his first university course in 2011 Mr Schokman suffered an event when crossing a road, his legs gave way causing him to fall heavily, grazing his arms and legs. Mr Schokman believes this was his first full cataplectic attack.[1] In mid-2012, Mr Schokman underwent a sleep study which diagnosed him as suffering from narcolepsy and cataplexy. Narcolepsy is a sleep disorder characterised by overwhelming daytime drowsiness and sudden attacks of sleep. Cataplexy is a sudden and ordinarily brief loss of voluntary muscle tone triggered by strong emotions, such as laughter or emotional stress. As explained by Dr Brown, the condition is most commonly associated with narcolepsy.[2]
  3. [3]
    From 2012 to March 2016, Mr Schokman underwent medical treatment to assist with his conditions, however, even with treatment and the prescription of numerous and powerful drugs, Mr Schokman was still suffering from narcolepsy and cataplexy. By January 2016 Mr Schokman was having episodes of cataplexy approximately three times a day which were often triggered by laughing.[3]
  4. [4]
    Mr Schokman’s research, in conjunction with Dr Seeto (Mr Schokman’s treating GP), and Dr Banerjee, showed that a new drug called Xyrem (sodium oxybate) was successful in treating cataplexy and accordingly Mr Schokman was placed on a three month trial of Xyrem pursuant to a compassionate access scheme.[4] The drug was immediately effective, and I accept the evidence of Mr Schokman’s father that it was a “day and night moment”.[5] Although an extremely effective drug, the drug Xyrem was not on the Commonwealth Government’s Pharmaceutical Benefits Scheme (PBS) and as such would cost Mr Schokman $20,000 per annum. Mr Schokman lobbied government agencies including his local federal member, Mr John Alexander, in order to have Xyrem placed on the PBS, however that was unsuccessful.
  5. [5]
    Between 1 June 2016 and 15 July 2016 Mr Schokman worked for Mr Alexander and was paid a gross income of $6,450 which was utilised by Mr Schokman to pay for his medication. Mr Schokman then found work on 8 August 2016 at Kipling’s Garage Bar in Sydney as a supervisor and worked in that position until 12 September 2016 earning $5,312 nett. Mr Schokman’s position at Kipling’s was terminated for reasons unconnected to Mr Schokman’s conditions.
  6. [6]
    Mr Schokman then applied for a position as food and beverage supervisor on Daydream Island and was successful in obtaining that position. After obtaining employment with the defendant at Daydream Island, Mr Schokman sent an email to the HR coordinator, Ms Debra Boyd on 17 October 2016 explaining that he suffered from “a rare disability known as narcolepsy and cataplexy” informing Ms Boyd that “I’m now almost able to function 100% and as such my medical condition won’t affect my position or employment, however, I will keep you apprised of any changes.”[6]
  7. [7]
    At that time, Mr Schokman raised only one concern: the storage of his medications as they were both expensive and attractive to persons wishing to abuse drugs.[7] That information was passed along to Ms Hansen, the island nurse. Ms Hansen, after researching Mr Schokman’s condition and the drugs, agreed to safely store the Xyrem in the medical safe on the island.
  8. [8]
    The employment contract signed by Mr Schokman includes a clause which states:[8]

“As your position requires you to live on the island, furnished shared accommodation located at Daydream Island Resort and Spa will be made available to you when engaged in this position at a cost of $70 per week.”

  1. [9]
    The contract also provided for the entering into of a tenancy agreement,[9] however that agreement was not placed in evidence. The contract of employment also makes reference to numerous other documents which have not been proved in evidence. There is reference to an employee handbook, as well as resort policies, practices and procedures. Most notably, the contract stipulates that Mr Schokman must “abide by the conditions…detailed in the Staff Village Regulations.” None of these documents were proved in evidence. However, that does not mean they did not exist. These documents had specific titles and I consider the better inference is that they did exist.
  2. [10]
    The contract of employment provided the defendant with the right to summarily terminate employment without notice if the employee engages in serious misconduct. The agreement also includes a clause, under the heading “Workplace Health & Safety” that:[10]

“You must under no circumstances attend work having consumed alcohol or drugs, or consume any alcohol or drugs whilst at work.

You agree that the Company can request that you attend drug and alcohol testing or another medical examination to establish that you are fit for work.”

  1. [11]
    Mr Schokman arrived on the island on 25 October 2016 and worked 10 days straight until 4 November 2016.[11] From 25 October to 30 October, Mr Schokman occupied a room by himself. There was no suggestion that Mr Schokman’s conditions interfered with his work during that period. On 1 November, a new worker, Mr Hewett, moved into the double room occupied by Mr Schokman and both men worked on the same shifts in “Mermaids” restaurant. At Mermaids, Mr Schokman was the supervisor and Mr Hewett was in the inferior position of team leader.
  2. [12]
    Mr Schokman received his rostered days off on Saturday 5 November 2016 and Sunday 6 November 2016. On the afternoon of Sunday 6November 2016, Mr Schokman went jet skiing.[12] Mr Schokman thoroughly enjoyed his jet skiing experience, an activity he would not have been able to do prior to his cataplexy coming under control with Xyrem (as the jet skiing would have created too much emotional excitement such that he was likely to have had a cataplectic attack).
  3. [13]
    As Mr Schokman had stored his medications with Ms Hansen, he had regular contact with Ms Hansen. I accept Ms Hansen’s evidence that Mr Schokman had raised with her the difficulties which he had in sharing his room with Mr Hewett.[13] I accept Ms Hansen’s evidence that the issues raised by Mr Schokman were that he thought it improper that he should have to share a room with a subordinate in his own department and that Mr Schokman thought Mr Hewett was “odd” because he had returned to his room one day to find that his underwear had been folded for him. Ms Hansen commented that that was not an unusual experience amongst employees as laundries were shared and as a matter of necessity employees had to remove clothes from dryers. Further, as a matter of courtesy, some employees did fold the washing for other employees. Ms Hansen described this as being “not uncommon”.[14]
  4. [14]
    Apart from complaints about Mr Hewett being “odd”, Ms Hansen could not recall any other complaints being made by Mr Schokman about Hewitt.[15] In particular, had Mr Schokman made complaints that he felt unsafe or in any way at risk, MsHansen said that she would have definitely noted that and raised it immediately with HR.[16] I accept Ms Hansen’s evidence that Mr Schokman did not raise with Ms Hansen that he harboured any safety concerns. MsHansen did however inform Mr Schokman that if he had any problems with his roommate, that the correct procedure was to raise it with HR.[17]
  5. [15]
    The HR Manager at Daydream Island was Ms Patricia Anthony. Ms Anthony’s evidence is based almost entirely upon her notes.[18] I accept Ms Anthony’s original evidence that she kept a handwritten notes of work events and that, if she considered it was likely an issue would arise, she would then transfer the handwritten notes into a computer documented running record. Thus, the notes recorded in Exhibit 1[19] were not made contemporaneously with the events but, rather, came into existence on the morning of 7 November 2016. The entries which precede that date are, largely, a copy of the record of handwritten entries made on those dates and accordingly I accept they are generally accurate but, as is plain on their face, because of the anachronisms, they have been reconstructed.

The Incident

  1. [16]
    The incident occurred in the early hours of 7 ovember 2016 and is best described in Mr Schokman’s police statement, which records:[20]

“5.HEWETT was working that afternoon in Mermaids Restaurant as the team leader. He finished work at around 11pm got changed and came down to the staff bar for a few drinks. I seen [sic] him there but we didn’t really have much of a chat there I observed that he had drank a few premix drinks at the bar but I wouldn’t say he was overly intoxicated.

  1. I left the staff bar at approximately 1am and went back to my room. I started getting myself prepared for work for the week by ironing my shirts etc.
  1. At approximately 1.15am HEWETT returned back to our room and he was visable [sic] upset and began complaining about his work environment and stated that he had issues about the management team. I am HEWETT’s direct supervisor so he was basically having a go at me saying that he is being disrespected at work. I immediately told him that I didn’t want to discuss work at home and we can have a chat about this tomorrow at work.
  1. HEWETT seemed fine and told me he would let me get some sleep. He then grabbed a couple more drinks and left our unit.
  1. I then took my medication that basically knocks me out when I go to sleep. My medication is called Xyren [sic] and I take two 4.5mil doses before bed.
  1. I woke up for a short period of time when HEWETT has returned. I think it was about 3am and I heard HEWETT spewing in our bathroom and he was walking around with the hiccups. I didn’t say anything to him I just went back to sleep.
  1. About 30 minutes later I woke up in complete distress and I was unable to breathe. I immediately realised that I was choking and inhaling HEWETT’s urine. I looked up and observed HEWETT standing over my bed with his shorts pulled down a short distance and his penis was exposed whilst in the act of urinating.”

(Emphasis added.)

  1. [17]
    Mr Schokman then described that after he had yelled at Hewett, Hewett continued urinating upon him for a short period of time and then stepped back away from him. After the incident Mr Hewett went into the bathroom and then came out, apologising to Mr Schokman and began to strip the sheets off Mr Schokman’s bed. Mr Hewett said “I’m sorry, Ill [sic] fix everything.”[21]
  2. [18]
    When Mr Schokman attempted to leave the room, Mr Hewett stood in front of him and then apologised again, however, Mr Schokman pushed passed Mr Hewett into the corridor and began to have a cataplectic attack in the hallway.

Liability

  1. [19]
    Liability was in issue between the parties, and accordingly evidence, including expert evidence, was called regarding that issue.

Faiyaz Devjee

  1. [20]
    Mr Schokman called Mr Devjee as a liability expert in his case. Mr Devjee has a Master of Commerce, among other things, from the University of Otago. Mr Devjee has vast experience working in industrial relations in the mining industry and is currently the vice president of the Industrial Relations Society of Queensland. Mr Devjee has taught “human relations” at the University of Otago.[22]
  2. [21]
    As established in cross-examination, Mr Devjee has no experience of working in any human relations role in any island resort,[23] and that does create difficulties for the utility of his expert opinion in the present case.
  3. [22]
    Mr Devjee answered questions with reference to his experience of Fly In, Fly Out (FIFO) workers in mining camps who are ordinarily provided single room accommodation to accommodate their long (12-hour) split and rotating shifts. Mr Devjee conceded that the strict drug, alcohol, and fatigue policies applicable to FIFO workers at mines do not apply in his experience on the so-called pyjama days, that is, the day FIFO mining workers are not rostered on to work, but to reverse their sleeping cycle, moving from day to night shift or vice versa.
  4. [23]
    Mr Devjee considered that on these days the usual drug, alcohol, and fatigue policies did not apply to the worker, workers could frequent hotels in any local towns and drink what they like, as long as they complied with the drug and alcohol policy at the commencement of the next shift. This highlights the difference between FIFO mining employees and permanent employees at island resorts. That is, the island workers, who do have the luxury of living in a physically more attractive locations, do not return home after their shifts are completed, but rather remain living in the staff accommodation at the resort. The drug and alcohol policies which are therefore perfectly reasonable and applicable to mining and resource operations are not necessarily reasonable, given the permanency of the employees stay on the island, for island resort staff accommodations.
  5. [24]
    Mr Devjee gave several of his answers with reference to the right of an employee to have their own singular accommodation, however in this case that was not a particular of breach of duty of care, and it was a term of the contract of employment of Mr Schokman with the defendant that Mr Schokman live in shared accommodation.
  6. [25]
    I accept Mr Devjee’s evidence of the need for a grievance procedure to manage issues between employees, commencing with knowledge being provided to the employee that they may make complaints to their employer for investigation and, as Mr Devjee put it, for the employer to take appropriate action. However, as the evidence shows, that is what occurred in the present case.[24] Mr Schokman did make complaint about his circumstances, both to the HR manager and to the island nurse, alternative accommodation was considered, however, as the evidence showed, there was no alternative accommodation.[25]
  7. [26]
    By paragraph 3.1 of his report,[26] Mr Devjee concedes that there is not industry standard for sharing in remote locations, but refers to a Queensland Health guideline for employer accommodation “that where accommodation is shared that individually locked doors should be installed to private areas (e.g. bedrooms)”.
  8. [27]
    A photograph of the room allocated to Mr Schokman,[27] shows that the room allocated to Mr Schokman did not have, apart from the bathroom, any private area. Mr Devjee further comments that in his experience, a contemporary expectation on commercial employers in a FIFO mining location is that the employer supply accommodation for employees who are away “from their usual residence” which provides a “private place to sleep, rest and relax.”[28]
  9. [28]
    A resort island is plainly not a FIFO mining location and employees do not FIFO for the duration of the employee’s employment, such that the staff accommodation and amenities would indeed be the employee’s “usual residence”.
  10. [29]
    Although in paragraph 3.2 of Mr Devjee’s report,[29] Mr Devjee opines that employees should never have to share accommodation at remote locations unless there are two separate bedrooms, that opinion is not pleaded as a breach of duty in Mr Schokman’s case. At paragraph 3.2, Mr Devjee also opines in a general sense that employers should ensure that a code of conduct and company policy for sharing accommodation was devised, implemented and understood in relation to what is acceptable conduct, what is expected and what is not permitted.
  11. [30]
    It is no direct part of Mr Schokman’s case that there is negligence as the defendant has failed to ensure that there is a code of conduct and company policy for sharing accommodation, although by paragraph 21(e) of the Second Further Amended Statement of Claim (“SFASOC”), Mr Schokman has alleged that the defendant was in breach of its duty of care by “failing to instruct Hewett appropriately or at all with respect to appropriate levels of conduct within the accommodation.” Mr Schokman has not articulated what was the proper level of conduct that Hewett should have been instructed to comply with. Mr Devjee has not stated what ought to be in the so-called code of conduct and company policy other than a “grievance procedure to assist the employees to deal with any potential conflict or incompatibility issues.”[30]
  12. [31]
    Page 3 of the contract of employment refers to not only a tenancy agreement being entered into, but also an obligation by an employee to “abide by the conditions associated with living on Daydream Island as detailed in the staff village regulations”.[31] Those staff village regulations were not put in evidence. The only specific evidence with respect to what ought to be in an employee code of conduct and company policy was reference to a grievance procedure. The evidence is that Mr Schokman was told of the grievance procedure, that is to raise accommodation issues with HR by the nurse, Ms Hansen.[32] As shown in by the evidence,[33] Mr Schokman in fact availed himself of the grievance procedure by making reports to HR in respect of his accommodation with Mr Hewett.
  13. [32]
    I accept Mr Devjee’s opinion at paragraph 3.3 to 3.7 that there are risks associated with having shared accommodation with respect to the possibility of inappropriate behaviour. Mr Devjee opines that the appropriate response is to implement a code of conduct, company policies and grievance procedures, however, as I have stated above, no evidence as to what would be an appropriate code of conduct or company policy was placed in evidence, and in fact there was a grievance procedure which was in fact utilised by Mr Schokman.
  14. [33]
    With respect to paragraph 3.5 of Mr Devjee’s report, I accept as a general observation there is a power imbalance between a superior and subordinate employee, however, in relating this to the circumstance at Daydream Island, I accept Mr Wylde’s evidence that there is really little difference in authority between Mr Schokman’s position as a food and beverage supervisor and Mr Hewett’s position as a food and beverage team leader.[34] Furthermore, the reasoning provided by Mr Devjee for his general conclusion is that a subordinate employee may be subject to inappropriate behaviour is not relevant to Mr Schokman’s case, as the reasoning utilised (that difficulties may arise when subordinates and superiors become close friends) did not arise in Mr Schokman’s case.
  15. [34]
    In paragraphs 3.8 and 3.9 Mr Devjee opines that an employer is obligated to conduct an appropriate assessment to ensure employees in shared accommodation are compatible. When questioned on the issue, however, Mr Devjee confirmed that the assessment may be done informally and need not necessarily be undertaken by qualified persons such as a psychologist, but rather simply by way of a survey. In this regard, I accept the evidence of Ms Anthony, the HR Manager at the island, that attempts were made to house employees with other employees in an appropriate manner with regard to age, sex, and work roster. I further accept Ms Anthony’s evidence that the pre-employment health check was usually included on the front of the personnel file and therefore the employer was made aware of any lifestyle or health issues.
  16. [35]
    In paragraphs 3.10 and 3.11, Mr Devjee opined that it is usually critical to have an alcohol consumption policy to ensure employees are managing their lifestyle, the impacts on others, and also adhering to the employee safe work policies. Mr Devjee explained this with reference to his experience in the mining and resources industry and where there are FIFO workers. Page 5 of the contract of employment includes the clause that an employee “must under no circumstances attend work having consumed alcohol or drugs or consume any alcohol or drugs while at work” and that “you agree that the company can request that you attend drug and alcohol testing or another medical examination to establish that you are fit for work”. Ms Anthony explained that alcohol consumption was monitored at the staff village by the provision of limited hours for the opening of the staff bar and by the insistence that the staff bar be operated by a personal qualified with a Responsible Service of Alcohol certificate. In addition, room checks were made.
  17. [36]
    Mr Devjee’s experience in the mining and resources sector is that alcohol policies document a limit on how many drinks an employee may receive at a bar or wet mess at the accommodation facility, and with the banning of drugs and alcohol from accommodation rooms. Mr Devjee did however agree with the proposition put to him by Mr O'Driscoll for the defendant in respect of a “pyjama day”. As Mr Devjee conceded, on those pyjama days, the rules did not apply and mining employees were allowed to attend in any hotel near a mine and consume alcohol as they see fit, as long as they are alcohol free at the commencement of their next shift.[35]

Dr Carlos Caponecchia

  1. [37]
    The other expert called in the plaintiff’s case, Dr Carlos Caponecchia identified in his primary evidence by way of report[36] and file note[37]. In his report of 1 December 2020, Dr Caponecchia identified the risks associated with sharing accommodation at paragraph 49 of the report would require additional or improved risk controls that included:
    1. (a)
      Providing separate bedrooms within a shared apartment;
    2. (b)
      Not requiring employees in direct supervisor relationships to share accommodation;
    3. (c)
      Providing accommodation with additional space and/or additional privacy;
    4. (d)
      Providing individual accommodation for Mr Schokman.
  2. [38]
    Theoretically these risk controls would be of assistance in controlling risks associated with sharing accommodation. The difficulty in the present case is that the accommodation occurred on a tropical island and it was a provision of the contract of employment that employees in fact share accommodation. There was no part of the plaintiff’s pleaded case that the accommodation ought to be redesigned as suggested by Dr Caponecchia, and even if there was additional space or addition privacy, it may not have avoided the event.
  3. [39]
    As to the requirement of not requiring employees in direct supervisor arrangements to share accommodation, again perhaps a sound guideline in a general sense, however, I cannot accept in the present case that the urination event was a consequence or in any way related to the direct supervisor relationship between Mr Schokman and Mr Hewett.
  4. [40]
    As to the risk related alcohol consumption, Dr Caponecchia said at paragraph 50 of his report:

“In relation to the risk associated with alcohol consumption, additional or improved risk controls could include:

  • Providing alternative recreational facilities in addition to a staff bar;
  • Ensuring responsible service of alcohol at the staff bar;
  • Limiting the number of drinks that could be purchased at the staff bar, through example implementation of responsible service of alcohol principles; and
  • Providing food at the staff bar.”
  1. [41]
    Again, these reasonable suggestions are not of assistance in Mr Schokman’s case. Firstly, the defendant did have a policy of only having persons who had responsible service of alcohol qualifications conduct the staff bar. Those principles require a limitation upon the number of drinks which can be purchased at the staff bar. It has not, however, been shown how the provision of food at the staff bar or alternative recreational facilities could have avoided the urination event.
  2. [42]
    Dr Caponecchia agreed with Mr Devjee as to the lack of control that an employer may implement upon employees in respect of their conduct “out of work hours”[38]:

“In your experience, outside of work hours, the employer lacks a lot of ammunition to be able to control workers’ behaviour, don’t they, as a hard control? Well, yes. Apart from setting requirements on fitness for duty and – and controls around standards of behaviour and conduct.”

  1. [43]
    As to the content of the policies or codes of conduct, Dr Caponecchia’s evidence[39] was as follows:

“Well, the main way that most organisations do that is through a Code of Conduct which covers the range of issues that an organisation has identified as potentially creating risks. So it might include conduct related to what happens around drinking behaviour, what happens with areas of the site that you might go to or not go to, as well as the kinds of behaviours that are expected in terms of its personal behaviours with the co-workers. […] it might also include directions on the nature and style of interpersonal behaviours that you might show with your colleagues.[…] some kind of guidance as to standards of behaviour would be very useful in a situation like that and might be extended to cover issues of privacy or issues of work/life balance. You know, they might call it not bringing work home and the separation between work and home. So I think further – that may – those issues may not necessarily be covered in a code of conduct. Organisations make their own decisions about where these issues are discussed and in which policy document or procedural document they’re covered in. They might be covered in guidance, for example. But indications on those kinds of behaviours would be useful, yes.”

  1. [44]
    Prior to the evening of 6 November 2016, there was no suggestion from Mr Schokman or any witness called that Mr Hewett had any difficulty with excessive consumption of alcohol.

Findings of Fact on Liability

  1. [45]
    In the plaintiff’s outline of oral submissions,[40] the plaintiff sought findings of fact contained in paragraphs 1 to 17. With the exception of paragraphs 9(b), 10, 12, 14, 15, 16, and 17(e), I conclude that the findings of fact as suggested ought to be made. Those findings of fact are as follows:

“1.It was a condition of the contract of employment that the plaintiff live on Daydream Island in accommodation shared with another employee of the defendant.[41]

2.On 18 October 2016, the plaintiff informed the Human Resources Coordinator at Daydream Island of the following:[42]

  1. (a)
    he suffered from a rare disability known as Narcolepsy and Cataplexy;
  1. (b)
    he was required to take two prescription medications, namely Dexamphetamine and Sodium Oxybate;
  1. (c)
    he requested a safe be placed in his room to store the medications or alternatively a secure location where he could access the medications on 18 October 2016.

3.The plaintiff first arrived on Daydream Island on 25 October 2016.

4.The plaintiff commenced employment with the defendant on Daydream Island on 26 October 216.

5.On 1 November 2016, Hewett commenced employment with the defendant on Daydream Island.

6.When the plaintiff arrived on Daydream Island, he was given accommodation by the defendant in the staff village (“the accommodation”):

  1. (a)
    in respect of the accommodation:
  1. (b)
    it was a studio type apartment;
  1. (c)
    it comprised one bedroom with two beds;
  1. (d)
    it contained one bathroom located at the front of the unit, near the front entranceway.

7.Until 1 November 2016, the plaintiff occupied the accommodation alone.

8.On 1 November 2016, Hewett moved in to share the accommodation with the plaintiff. In respect of Hewett:

  1. (a)
    he was not known to the plaintiff;
  1. (b)
    he worked in the same area as the plaintiff at Daydream Island;
  1. (c)
    he was subordinate to the plaintiff when they were at work;
  1. (d)
    the plaintiff was not consulted about Hewett moving into the accommodation.[43]

9.Prior to Hewett being placed in shared accommodation with the plaintiff, the defendant did not:

  1. (a)
    carry out any medical examination of Hewett;

[…]

  1. (c)
    discuss with the plaintiff the suitability of Hewett sharing accommodation with him;
  1. (d)
    make any enquiry of Hewett with respect to sleeping issues he may have had;
  1. (e)
    put any limit on Hewett’s intake of alcohol whilst he was a resident in the accommodation.[44]

[…]

11.The defendant was aware of a previous sexual assault of an employee by another intoxicated employee on the island that occurred on 21October 2015.

[…]

13. Further evidence that the plaintiff made complaint regarding Hewett is to be found in Exhibit 1 Tab 1 p.46. The evidence of Ms Louise Hansen confirms the plaintiff complained more than once to her.[45]

[…]

  1. On the evening of 6November/morning of 7 November 2016 on Daydream Island:
  1. (a)
    Hewett finished work at approximately 11:00pm in Mermaid’s Restaurant;
  1. (b)
    Hewett then went to the staff bar;
  1. (c)
    Hewett began drinking alcohol at the staff bar;
  1. (d)
    the plaintiff was also present at the staff bar;

  1. (f)
    the plaintiff returned to the accommodation at approximately 1:00am;
  1. (g)
    the plaintiff commenced ironing shirts in the accommodation;
  1. (h)
    at approximately 1:15am, Hewett returned to the accommodation;
  1. (i)
    when Hewett returned to the accommodation, he was visibly upset;
  1. (j)
    Hewett began making complaints about his work environment;

(k)Hewett began complaining about issues with the management team;

(l)the plaintiff informed Hewett that he did not want to discuss work issues;

(m)Hewett then obtained some further alcoholic drinks and left the accommodation;

(n)the plaintiff then took the medication for his medical conditions;

(o)Hewett returned to the accommodation at some later time in the morning;

(p)Hewett vomited in the bathroom;

(q)approximately thirty minutes after Hewett returned to the accommodation, Hewett:

i.urinated in the plaintiff’s face;

ii.urinated in the plaintiff’s face as the plaintiff was lying asleep in his bed;

iii.was standing beside the plaintiff as the urinated (“the urination event”);

(r)by reason of the urination event, the plaintiff began having a cataplectic attack.[46]

  1. [46]
    In addition, I would add the words, after paragraph 17(l), “and Hewett seemed fine.”
  2. [47]
    Turning to the findings of facts urged by the Plaintiff which I do not accept, Mr Schokman sought a finding of fact in terms of paragraph 9(e) that the defendant did not obtain “Mr Hewett’s medical history in the pre-employment medical”. As set out in [34], the defendant did obtain Mr Hewett’s medical history. Mr Schokman also sought a finding that:[47]

“10.Prior to Hewett being placed in shared accommodation with the plaintiff, the defendant did not:

  1. (a)
    have a policy, documented or otherwise, in respect of the safe consumption of alcohol by employees residing on Daydream Island; or
  1. (b)
    have a code of conduct, documented or otherwise, for employees residing in shared accommodation on Daydream Island.”
  1. [48]
    The Plaintiff sought that finding on the premise that there was evidence from Mr Schokman concerning his induction, which included information about alcohol consumption and “mentioning the staff bar and things like that”.[48] I decline to make this finding of fact as it is not in accordance with the evidence. The existence of the policies and procedures is referred to in paragraphs [9] and [10] above, however, the content was not proved. The policies, code of conduct and documents referred to in paragraphs [9] and [10] were not called for in the plaintiff’s case. An alcohol policy or directive was included in the contract of employment, see [10] above, although there was no separate alcohol policy in any other document.[49]
  2. [49]
    The finding of fact sought at paragraph 15 was as follows:[50]

“15.Not only did the defendant know about the plaintiff’s sleep conditions, but had it enquired with its resident nurse, Ms Hansen, it would have discovered that cataplexy could be aggravated by strong emotions such as laughter, stress, fear or anger. The plaintiff also told them as much when he arrived on the island.”[51]

  1. [50]
    I decline to make this finding as I accept that Mr Schokman in fact told Ms Hansen of his conditions and so the defendant, through its responsible officer, Ms Hansen, did know of Mr Schokman’s condition of cataplexy and I accept therefore the defendant ought to have known the cataplexy may be aggravated by strong emotions such as laughter, stress, fear or anger. The defendant’s stated knowledge is however supplemented by Mr Schokman’s express description as set out in paragraph[6] above that Mr Schokman was “almost able to function 100% and as such my medical condition won’t affect my position or employment…”[52]
  2. [51]
    On the basis of the information provided by Mr Schokman to Ms Boyd, although the defendant was aware of Mr Schokman’s condition, the defendant did not, because Mr Schokman’s cataplexy was so well controlled, have any cause to treat Mr Schokman differently from any other employee.
  3. [52]
    As to the suggested finding at 16 that there was “no screening of employees to determine their compatibility as roommates other than in relation to their working hours”, I decline to make this finding as I accept the evidence of Ms Anthony discussed at [34].
  4. [53]
    As to the suggested findings at paragraphs 12 and 14, the plaintiff sought findings as follows:

“12.Between 1 November 2016 and 7 November 2016, the plaintiff:

  1. (a)
    complained to the defendant about Hewett’s behaviour;[53]
  1. (b)
    complained to the defendant about the tension caused by sharing accommodation in light of his working relationship with Hewett;[54]
  1. (c)
    requested that the accommodation arrangements be changed in light of that behaviour.[55]

14.Given the unsatisfactory nature of Ms Anthony’s evidence and in particular the unreliability of her “contemporaneous notes” the court would safely accept the plaintiff’s evidence on this topic where it conflicts with hers. In particular, his evidence:

‘I explained to her the situation. I said that I don’t think it’s healthy that putting someone who was, you know, working underneath me – or that I was their – you know, their superior. If I had issues at work with – you know, with how he’s working and things like that, it would make it extremely awkward to bring up, particularly if I had to – you know, we’d be spending 10 hours a day at work and then be talking about work outside of hours. So I said, you know, that it was like a pressure – a pressure cooker situation, and I said to her that, you know, I would like to change my – I would like to change my roommate or have a sing – like, be – my own room, if possible, because, yeah, if – I feel like if something isn’t – if something isn’t done, then something worse is going to happen.’[56]

  1. [54]
    As to paragraphs 12 and 14, the suggested findings are not in accordance with the facts as I find them.
  2. [55]
    In respect of paragraph 12(a), whilst I accept Mr Schokman’s evidence that he did complain to the defendant about Mr Hewett’s behaviour, I consider that complaint limited to the complaint recorded by Ms Hansen that he “found Mr Hewett a little bit odd but nothing aggressive.”[57] The complaint I accept made to Ms Hansen as to Mr Hewett is that Mr Schokman did not wish to share a room with a subordinate[58] and in particular I accept that in complaints made to Ms Hansen there was no suggestion that MrHewett was aggressive to Mr Schokman. The complaint therefore, which I accept, in respect of Hewett’s behaviour is that it was odd, an assessment made by Mr Schokman based upon Hewett’s folding of Schokman’s laundry.[59]
  3. [56]
    In his evidence-in-chief, when Mr Schokman was asked about his relationship with Mr Hewett, Mr Schokman described that “The first conversation we had was ok, but he just kept – I don’t know – doing odd things if that makes sense. Like for example he went through my underwear that I had just washed and folded them there all for me…”[60].
  4. [57]
    Mr Schokman’s own description of Mr Hewett as “doing odd things”, which was given by way of the example of the folding of the washing, is precisely the same as Ms Hansen’s recollection. I have great confidence in accepting Ms Hansen’s evidence. I accept therefore that no complaints, apart from those related to Mr Hewett being “odd” because he had folded Mr Schokman’s underwear and rooming with an inferior were made by Mr Schokman to Ms Hansen.
  5. [58]
    Much later, in the course of his WorkCover claim, Mr Schokman told Ms Bevis, WorkCover officer, that he did not have fights with Mr Hewett but rather had disagreements which “were increasing and he was getting more annoyed.”[61] Furthermore, as Mr Schokman understood it, Mr wett was not getting more annoyed at Mr Schokman but rather Mr Hewett was getting more annoyed with “management” which Mr Schokman assumed included himself.[62]
  6. [59]
    Mr Schokman’s evidence[63] was that he “discussed it with the island nurse a few times…I said to the nurse and the HR manager as well that it’s almost like a pressure cooker situation, where, over a few days that we’d become roommates for, he’s becoming more and more agitated, more and more – he paced the room aggressively and things like that…”
  7. [60]
    Mr Schokman described that he relayed his concern to Ms Anthony, HR Manager, that it was inappropriate for him to share a room with an employee that he was a superior of and that:

“…we’d be spending 10 hours a day at work and then be talking about work outside of hours. So I said, you know, that it was like a pressure – a pressure cooker situation, and I said to her that, you know, I would like to change my – I would like to change my roommate or have a sing – like, be – my own room, if possible, because, yeah, if – I feel like if something isn’t – if something isn’t done, then something worse is going to happen.”[64]

  1. [61]
    Mr Schokman’s evidence was he had the same conversation with Ms Hansen.[65] I do not accept Mr Schokman’s evidence that he had that type of conversation with Ms Hansen nor Ms Anthony. Mr Schokman’s version of the conversation with MsAnthony to change his roommate by having his own room differs from his conversation with Ms Bevis of WorkCover where he admitted that he did not request a new room but rather was asking about “the situation as I was concerned something would happen”[66].
  2. [62]
    As to the complaints made to the defendant about Hewett’s behaviour, Mr Schokman’s case focussed upon complaints made to Ms Anthony and it was Mr Schokman’s case that Ms Anthony’s evidence should be rejected. As explained in paragraph [14] above, Ms Anthony’s notes are clearly not a contemporaneous record.[67] As Ms Anthony explained,[68] Ms Anthony’s ordinary work process was to hand write a file note and then “once an incident, a matter, or an issue was proceeding, I feel it’s going to be quite long term and something’s quite serious, I would often type up and keep that as an ongoing record management.”
  3. [63]
    In the present case, as the first note is dated 1 November 2016 and makes complaints about Mr Schokman working 10 days straight until 4 November 2016, it is plain the entry was not made on 1 November 2016.[69] I do accept however that Mr Schokman made a complaint to Ms Anthony on 5 November 2016 and that complaint, as is recorded, dealt with Mr Schokman being required to work 10 days straight without his two rostered days off. I further accept that Mr Schokman did, on 1 November 2016, raise a request for single accommodation due to his medical condition “and he was concerned about sharing with another F&B team leader considering the nature of his role.” The note then records:[70]

“I advised I couldn’t give him sole accommodation as it’s not a part of the policy for his role. Instead I would look into changing his roommate as soon as reasonably practical considering the circumstances. I noted that the village is at capacity and it may take time but we will look to do this as soon as possible.”

  1. [64]
    As the complaint made about working 10 days to 4 November 2016 occurs in the first paragraph of the entry of 1 November 2016, I consider that paragraph is in error and rather that complaint about excessive working was made on 5November 2016. I accept that there was a request for a new room on 1 November 2016 because Mr Schokman thought it was inappropriate he share a room with an inferior and because Mr Schokman had a medical condition and that Mr Schokman said of himself that he was “A little bit stuck up and prefers his own space and that Mr Schokman had underestimated the difficulty of sharing a room.”[71]
  2. [65]
    I further accept that Ms Anthony explained to Mr Schokman that his position did not warrant sole accommodation, and that changing roommates may take some time as the staff village was at capacity. On 3 and 4 November 2016 when Mr Schokman was working, I accept Ms Anthony did phone Mr Schokman on 3 November 2016 and left a message but could not get hold of Mr Schokman and I accept that on 4 November 2016 Mr Schokman did come to the HR office at the island but Ms Anthony was unable to see him.
  3. [66]
    I consider that it is likely Mr Schokman made his complaint about excessive working as recorded in paragraph 1 of the entry of 1 November 2016 on 5 November 2016 as, on 6 November 2016, Mr Schokman went jet skiing. I accept Ms Anthony’s evidence[72] that Mr Schokman did not raise any concern about the aggression of Mr Hewett nor that the aggression was escalating, nor that it was a pressure cooker, nor that “something might happen” if he was not shifted. I consider it highly unlikely that if an employee raised such grave concerns about escalating aggression, a human resources officer or a nurse would not note that immediately and take immediate action. I consider that there is consistency in the complaints relayed on multiple occasions to Ms Hansen with the complaint made to Ms Anthony as recorded in the notes dated 1 November 2016 but made 5 November 2016.[73]
  4. [67]
    As the complaints relayed to Ms Hansen were extremely similar to the complaints recorded by Ms Anthony, I consider that their evidence ought to be accepted in preference to Mr Schokman’s evidence on the nature and content of the complaints made by Mr Schokman to representatives of the defendant prior to the incident. There is a great deal of difference between a complaint that a fellow worker and roommate was “odd” and that Mr Schokman ought not to be sharing a room with him as Mr Schokman was Mr Hewett’s superior, to a complaint that there was a pressure cooker situation in the room, that Mr Hewett was aggressive and that if something was not done, something worse was going to happen.
  5. [68]
    The version of the complaints as recorded by Ms Hansen and Ms Anthony is closer to the version of events provided by Mr Schokman post-incident in the WorkCover notes[74] where Mr Schokman told Ms Bevis of WorkCover that he and Mr Hewett did not have fights, but rather had disagreements which were increasing and that Hewett was getting more annoyed.
  6. [69]
    It is important to note that the complaints were made with details. The issue recorded between Mr Hewett and Mr Schokman that Mr Hewett would not stop talking about work or complaining about management.[75]
  7. [70]
    As to the last part of Mr Schokman’s conversation with Ms Bevis of WorkCover[76] I accept the accuracy of Ms Bevis’ note as to what she was told, namely that Mr Schokman did tell Ms Bevis that “I didn’t request a new room, but I did ask what could be done about the situation, as I was concerned something would happen.” Whilst I accept that Mr Schokman did say this to Ms Bevis, I find that Mr Schokman is incorrect in his recollection and I find that Mr Schokman did in fact request a new room as is recorded Ms Anthony’s notes,[77] Mr Schokman did ask what could be done about the situation. I further find that Mr Schokman did not say to Ms Anthony nor Ms Hansen, nor any other employee of the defendant, that Mr Hewett was aggressive or that he was concerned something would happen.
  8. [71]
    With regard to the suggested finding in paragraph 17(e), the plaintiff gave evidence that he did sip on the alcoholic drink,[78] so I cannot find that he “did not drink”. However, Mr Schokman was sober.

Defendant’s Duty of Care

  1. [72]
    In Roads and Traffic Authority (NSW) v Dederer,[79] Gummow J, with whom Callinan J (at paragraph 270) and Heydon J agreed, said in respect of basic and settled matters of legal principle with regards to negligence:

[18]These principles may be restated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.”

(Footnotes omitted.)

  1. [73]
    Gummow J went on to say:[80]

[43]Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.

[44] Regarding the first point, a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his ‘neighbour’ principle in 1932. The law now recognises types of loss and kinds of relationships which are different from those of earlier days. Five members of this Court observed in their joint judgment in Sullivan v Moody:

‘Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.’

[45]Many of those matters were canvassed in Brodie v Singleton Shire Council. The result of that case is that a road authority is obliged to exercise reasonable care so that the road is safe ‘for users exercising reasonable care for their own safety’. The expression of the scope of the RTA's duty of care in those terms has long antecedents in the law relating to occupiers' liability…”.

(Footnotes omitted; Emphasis added.)

  1. [74]
    Similar to RTA v Dederer,[81] the existence of the duty of care owed by the defendant employer to Mr Schokman is not in dispute. As to the plaintiff’s case in respect of the scope of the duty of care, it appears to be set out the SFASC which provides:[82]

“4. It was an implied term of the contract of employment that the defendant would:

  1. (a)
    take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury;
  1. (b)
    to design, establish, maintain and enforce a safe system of work;
  1. (c)
    to design, establish and maintain a safe place of work.
  1. It was an implied term of the accommodation clause that the defendant would take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury whilst complying with his obligations under this clause.
  1. Further, the defendant owed the plaintiff a duty of care to the same effect as the implied terms of the contract of employment.
  1. The duties that the defendant owed the plaintiff according to law were in accordance with and subject to Chapter 5, Part 8 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’).”
  1. [75]
    The defendant, by its Further Amended Defence,[83] the defendant pleads to those paragraphs as follows:

“2. The Defendant states with respect to the allegations in paragraphs 4, 5, 6 and 7 of the Statement of Claim that the scope and content of the duties owed are as encapsulated in the Workers' Compensation and Rehabilitation Act 2003 (‘WCRA’) as follows:

  1. (a)
    ‘duty’ is defined under s.305 as

‘duty’ means any duty giving rise to a claim for damages including the following:

(a) a duty of care in tort;

(b) a duty of care under contract that is concurrent and co-extensive with a duty of care in tort;

(c) another duty under statute or otherwise that is concurrent with the duty of care mentioned in paragraph (a) or (b);

(d) duty of care means a duty to take reasonable care or to exercise reasonable skill or both duties.

  1. (b)
    section 305B provides:

(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances a reasonable person in the position of the worker would have taken the precautions.

  1. (c)
    section 305D provides:

(1) A decision that a breach of duty caused particular injury comprises the following elements -

(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extent to the injury so caused (scope of liability).

(2) in deciding in an exceptional case, in accordance with established principles, whether a breach of duty - being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) - should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.

The implication of those terms is not necessary to give business efficacy to the contract.”

(Original emphasis.)

  1. [76]
    As may be observed from RTA v Dederer,[84] the scope of the duty of care of the RTA was rather broadly stated as the RTA was “obliged to exercise reasonable care so that the road is safe for users exercising reasonable care for their own safety.”
  2. [77]
    As stated by Gummow J in Dederer, duties of care are not owed in the abstract and obligations are of a particular scope. The breadth or narrowness of this scope depends upon the relationship in question. The scope of the duty of care alleged in paragraph4 of the SFASOC is quite broad but that, of itself, is an insufficient basis to conclude that it is incorrectly stated or too broadly stated or stated in the abstract.
  3. [78]
    In Kerle v BM Alliance Coal Operations Pty Limited & Ors,[85] McMeekin J said:[86]

[97] The employer’s duty is often described in terms that limit the obligations owed to meeting the dangers involved in the tasks undertaken – for example see Vozza v Tooth & Co Ltd per Windeyer J. But it is not always so limited. It is sometimes described as extending to not exposing employees to ‘unnecessary risks of injury’ – for example see Crimmins v Stevedoring Industry Finance Committee per Hayne J echoing what was said 40 years before in Hamilton v Nuroof (WA) Pty Ltd. A succinct statement appears in Czatyrko v Edith Cowan University where the Court described the duty as follows (citations omitted):

‘An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.’

(Footnotes omitted.)

  1. [79]
    As observed by McMeekin J in Kerle v BM Alliance[87] in Tunney v Midland Railway,[88] it was accepted that a duty of care arose in the employer when one of its workers was injured in a train whilst travelling home from work. As highlighted by Mc Meekin J, the contract expressly provided for the provision of travel by train and that was accepted as an incident of employment. Similarly, as analysed by McMeekin J in Kerle v BM Alliance,[89] in Jury v Commissioner for Railways (NSW),[90] it was accepted that a duty of care arose between the Commissioner for Railways and an employee, Mr Jury, who was killed by a passing train at night on land remote form his worksite long after work had finished. Mr Jury was killed when he attempted to walk from his campsite on one side of the railway line to a township on the other side of the railway line. As Mr Jury was residing in the camp as a response to the demands of his employment, a duty of care arose.
  2. [80]
    In Jury v Commissioner for Railways (NSW),[91] Rich and Dixon JJ said:[92]

“The consequence in the present case is that, in providing a camp on his premises for the deceased to inhabit in his character of employee, the Commissioner incurred to the deceased a duty of reasonable care for his safety. It was incumbent upon him to take all reasonable precautions in providing a place for a camp, including approaches and means of access.”

(Citations omitted.)

  1. [81]
    Jury v Commissioner for Railways (NSW),[93] suggests the scope of the duty of care in the present case ought to be as broadly framed as a duty on the defendant employer to take reasonable care for the safety of Mr Schokman by taking all reasonable precautions in providing a safe place of accommodation. In Kerle,[94] McMeekin J concluded as to the duty of care and scope of duty of care that was owed as follows:

[89] The plaintiff effectively contends for a duty in these terms: a duty to take reasonable care to avoid or minimise the risk of injury to a worker resulting from foreseeable fatigue consequent upon the worker engaging in four consecutive 12 hour night shifts and then undertaking long distance commuting to his home. The defendants each contend that no such duty was owed.

[90] In my view such a duty was owed. I acknowledge that, so expressed, the level of abstraction is not informative of the content of the duty. The plaintiff’s contention is that there were four specific measures that ought to have been adopted – control shift lengths, provide a place to rest, provide suitable advice and warning of the risks, and provide a bus service. I will deal with each proposal later when I consider the question of breach.”

  1. [82]
    It may be observed that the scope of duty contended for by the plaintiff in Kerle was in more precise terms than the scope of duty contended for by Mr Schokman.[95] I agree with McMeekinJ’s comment in Kerle v BM Alliance at [90], that the scope is broadly expressed and that causes difficulty as the level of abstraction and is not informative as to the content of the duty. However, as Dederer demonstrates, the scope of the duty of care may be stated in a very broad manner.
  2. [83]
    In this case the contractual obligation to share accommodation supports an expansive definition of the scope of the duty of care as expressed in the SFASOC. I observe Gummow J defined the scope of the duty of care, with reference to Brodie v Singelton Shire Council,[96] in Dederer as:[97] “a road authority is obliged to exercise reasonable care so that the road is safe ‘for users exercising reasonable care for their own safety’”. Gummow J further stated that the RTA did not owe a duty in the “abstract”,[98] but his Honour considered that the above expansive definition of the scope of duty, was not abstract.
  3. [84]
    The same may be said of the scope of the duty of care owed to the plaintiff in Jury v Commissioner for Railways (NSW),[99] as set out in the reasons of Rich and Dixon JJ at [105].
  4. [85]
    As to the first of the matters referred to by Gummow J at [18],[100] the existence of the duty of care is not in dispute. As to the scope of the relevant duty of care, I consider that it is properly framed in terms of paragraph 4 of the SFASOC with the substitution of the word “accommodation” for the word “work” where it appears in paragraphs 4(b) and (c), as it was a contractual requirement of Mr Schokman’s employment that he share accommodation at Daydream Island.
  5. [86]
    Accordingly, I conclude that the scope of the duty of care owed by the defendant to Mr chokman was a duty to take reasonable care:
    1. (a)
      To avoid exposing MrSchokman to an unnecessary risk of injury;
    2. (b)
      To design, establish, maintain and enforce a safe system of accommodation;
    3. (c)
      To devise, establish and maintain a safe place of accommodation.
  6. [87]
    It is necessary then to correctly identify the relevant risk of injury.[101] This is perhaps best outlined in paragraph 18A(d) of the SFASOC. Paragraph 18A(d) provides:

“18A.

  1. (d)
    the foreseeable risk which was not insignificant was the plaintiff having a confrontation or unpleasant personal interaction with Hewett which could give rise to a risk of injury.”
  1. [88]
    The correct identification of the risk of harm is an important matter.
  2. [89]
    In Garzo v Liverpool/Campbelltown Christian School Ltd,[102] Garling J said:

[59]But in a claim in negligence to which theCivil Liability Actapplies, it is necessary that the pleading identifies and articulates the material facts upon which the plaintiff relies to establish each of the elements required by s 5B(1).

[60] As a starting point, a proper pleading of a claim requires the plaintiff to identify, and articulate clearly the“risk of harm” in respect of which, it is alleged, the defendant was obliged to take precautions. This puts a Court in a position to determine the defendant's knowledge of a specified risk of harm, to assess the probability of that risk occurring, and to evaluate the reasonableness of the defendant's response, or lack of response, to that risk, thereby avoiding the type of error discussed by Gummow J inRTA v Dederer (2007) 234 CLR 330 at [59]-[61].

[61] A proper pleading will also need to plead whether it is part of the plaintiff's case that the defendant had actual knowledge of the risk of harm, and that the risk was thereby foreseeable (s 5B(1)(a)), or whether the plaintiff only contends that the defendant ought to have known of the risk of harm. Particulars of such a pleading would then ordinarily be provided. A defendant would then be in a position to fully plead to such allegation.

Identifying the Relevant Risk of Harm

[63] A central concept and one with which the analysis commences is the identification of‘a risk of harm’ against which the plaintiff, here Mrs Garzo, alleges a defendant would be negligent for failing to take precautions. Harm in this expression includes personal injury. Gummow J, in Dederer at [59]-[61] clearly demonstrates that it is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made.

[64] As a real and practical matter, where a Court is considering any of the essential steps in s 5B(1), it must do so against the identified risk of harm. It is a matter of common experience in common law claims, that in any given set of factual circumstances, there are a number of risks of harm which can be identified. Unless the risk of harm being relied upon is clearly identified then it will not be possible to identify what steps ought reasonably to have been taken by a defendant to address the risk. Nor will it be possible for a Court to determine what the application of reasonable care required.”

  1. [90]
    Similarly, Applegarth J, in dealing with the importance of the identification of the risk of injury and its formulation in terms of the breadth of formulation said in Walker v Green Mountain Food Processing Ltd:[103]

[77] In applying the relevant provisions, the risk of injury must be identified so as to encompass the risk which is claimed to have materialised and caused the damage of which the plaintiff complains.1 The ‘risk of injury’ referred to in the section is not to be confined to the precise set of circumstances in which the plaintiff was injured. It is well-established that, in order that a defendant be held to be negligent, it is not necessary that the defendant should have reasonably foreseen that the particular circumstances in which the plaintiff was injured might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred. Necessarily, the risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred. As Leeming and Payne JJA stated in Coles Supermarkets Australia Pty Ltd v Bridge:

‘What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury or because it too narrowly focuses on the particular hazard which caused the injury , or because it fails to capture part of the plaintiff’s case.’

[82] Having regard to the risk which is claimed to have materialised and caused the injury of which the plaintiff complains, it is appropriate to identify ‘the risk of injury’ for the purposes of s 305B(1) as the risk of suffering personal injuries when investigating a maintenance problem or undertaking a repair or installation that required the worker to go onto the roof of the rendering shed. The particular risk is the risk of falling off or through the roof.”

(Citations omitted.)

  1. [91]
    By their Outline of Oral Submissions,[104] the Plaintiff submits:

“26.In all the circumstances, the relevant risk may appropriately be framed as the risk of the plaintiff having a confrontation or unpleasant personal interaction with Hewett which could give rise to a risk of his pre-existing sleep disorder being exacerbated.”

  1. [92]
    In my view, the identification or formulation of the risk as expressed in paragraph26 is too narrow and the formulation of the risk is better accepted in terms of paragraph 18A(d). That is, the relevant risk was a risk that the plaintiff, Mr Schokman, having a confrontation or an unpleasant personal interaction with his designated roommate, Mr Hewett, which could give rise to a risk of injury to Mr Schokman.

Breach of Duty of Care

  1. [93]
    Section 305B of the WCRA provides:

“305B  General Principles

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  1. (b)
    the risk was not insignificant; and
  1. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
  1. (a)
    the probability that the injury would occur if care were not taken;
  1. (b)
    the likely seriousness of the injury;
  1. (c)
    the burden of taking precautions to avoid the risk of injury.”
  1. [94]
    It is submitted by the defendant that the risk of injury in the present case was not foreseeable. I reject that submission. If the relevant risk was a risk that an employee could suffer injury from being urinated upon, I would accept the submission, however, the risk is more broadly identified as set out in [92].
  2. [95]
    In terms of s 305B(1)(a) of the WCRA there is no evidence that the defendant knew that the risk was foreseeable, however, I conclude that the defendant ought to have reasonably known of the risk as it required its many employees to share accommodation facilities, which, by their design, are not spacious. If this is coupled with the fact that the employees live in the accommodation facility for long periods of time, and have access to alcohol with no specific limits placed upon the employees, I consider that it ought to be properly concluded that the risk of confrontation or unpleasant personal interaction was foreseeable and ought reasonably have been known to the defendant.
  3. [96]
    Pursuant to s 305B(1)(b) of the WCRA it is necessary for the plaintiff to establish that the risk was not only foreseeable but that it was “not insignificant”. In Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd,[105] Fraser JA, speaking for the Court said:[106]

[26] The respondent referred to Chesterman J’s statement in Pollard v Trude that the replacement in s 9(1)(b) of ‘not insignificant’ for the common law formulation of ‘not far fetched or fanciful’ added little in clarity. Nevertheless, the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true. The generality of these descriptions makes it difficult to be dogmatic about this, but the statutory language does seem to convey a different shade of meaning. The difference is a subtle one. The increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act applies the ‘not insignificant’ test must be applied instead of the somewhat less demanding test of ‘not far-fetched or fanciful’”.

(Citations omitted.)

  1. [97]
    Therefore, the relevant risk of a confrontation or unpleasant personal interaction between roommates giving rise to a risk of injury must be assessed on the basis that the risk must be shown to be something higher than “not far-fetched or fanciful”, or, as Fraser JA said: “produce some slight increase in the necessary degree of probability above far-fetched and fanciful”.
  2. [98]
    In favour of Mr Schokman are the facts that when two employees of the same sex are required to live in close proximity in a small room and in circumstances where there are not tight controls placed upon the consumption of alcohol, it may be concluded that there is risk that it is not insignificant that there may be a confrontation or unpleasant personal interaction between roommates. Against this conclusion is an absence of evidence of any such incident between roommates at the Daydream Island resort, in circumstances where there are many workers sharing accommodation and where the resort has been operating for many years.
  3. [99]
    There is no specific evidence as to how long Daydream Island or its staff residence has been in operation. Mr Schokman relied upon the defendant’s knowledge of a sexual assault by one employee, Woodhouse,[107] of a 20-year-old female employee that occurred on or about 21 October 2015 at Daydream Island in support of its argument that the risk identified was both foreseeable and not insignificant. I do not accept that submission. As is pled in paragraph 16(a) of the SFASC, the sexual assault was perpetrated by Mr Woodhouse upon another employee who was not his roommate, and accordingly that incident is not relevant to the assessment of the risk identified above (that is, confrontation or unpleasant interaction between roommates).
  4. [100]
    It may be seen that the identification of the risk is important to the determination of s 305B(1). Had the risk been defined as a risk of an employee who is a roommate urinating on the head of another employee as a roommate, I would have no hesitation in concluding that the risk was insignificant. The incident is bizarre and there is no evidence to suggest that anything remotely similar had ever occurred.
  5. [101]
    As stated above, however, it is proper to formulate the risk in terms of an unpleasant personal interaction or confrontation between roommate employees in the staff amenities of the defendant. When viewed in that broader manner, I consider it is appropriate to conclude that the risk was not insignificant in terms of s 305B(1)(b) as, although there is no evidence of such an incident occurring in the past, it is a risk which is higher than being properly described as far-fetched and fanciful because of the same factors I have considered above, namely, it was a term of condition of employment that employees share accommodation which was confined in space as a part of their ordinary living quarters for extended periods of time and in circumstances where there was an ineffectual or limitless access to alcohol by roommate employees. In addition, paragraph 44 of Dr Caponecchia’s report of 1 December 2020[108] supports this conclusion.
  6. [102]
    The most difficult issue in the case is the proper determination of breach in terms of s 305B(1)(c) and having regard to the Wyong v Shirt type factors as listed in s 305B(2). The first difficulty in determining whether Mr Schokman as plaintiff has shown that a reasonable person in the position of the defendant would have taken the precautions is to attempt to identify the precautions. The evidence does not identify the precautions with any acceptable level of certainty.
  7. [103]
    The precautions relied upon by the plaintiff are particularised as “breach of duty” at paragraph 21 of the Further Amended Statement of Claim as follows:

“21.The urination event was caused by the breach of duty of the defendant by:

  1. (a)
    in circumstances where the plaintiff was forced to share accommodation with another employee, failing to carry out any or any appropriate screening of potential room mates to assess their suitability as cohabitants;
  1. (b)
    failing to conduct any or any appropriate medical checks of Hewett in circumstances where he had a history of sleep walking;
  1. (c)
    failing to obtain a complete medical history from Hewett;
  1. (d)
    failing to respond to the plaintiff’s complaints with respect to Hewett’s behaviour when made prior to 7November 2016;
  1. (e)
    failing to instruct Hewett appropriately or at all with respect to appropriate levels of conduct within the accommodation;
  1. (f)
    failing to instruct Hewett appropriately or at all with respect to appropriate levels of alcohol consumption whilst on Daydream Island;
  1. (g)
    insisting Hewett reside in close proximity to the plaintiff in circumstances where the plaintiff and Hewett worked together and Hewett was the plaintiff’s subordinate;
  1. (h)
    failing to respond to Hewett’s disclosure that he had a history of sleep walking by moving him away from the plaintiff.”
  1. [104]
    In examining the suggested precautions set out in paragraph 21 of the SFASOC, the principles in s 305B(2) must be taken into account. In that regard I consider that the probability that harm would occur if care were not taken to be low. Whilst the risk of such harm is plainly foreseeable in the sense of not being farfetched and fanciful, and is properly assessed above as being not insignificant, that must be weighed against the absence of any evidence to suggest that any similar incident or any incident involving a confrontation or unpleasant personal interaction between roommates at a staff accommodation facility had caused any harm.
  2. [105]
    As to the likely seriousness of the harm, even if there was an unpleasant interaction or confrontation between roommates, the likelihood is that no harm would occur or minimal harm may occur in terms of a physical confrontation between roommates.
  3. [106]
    There is even graver difficulty with respect to s 305B(2)(c), the burden of taking precautions to avoid the risk of harm. As discussed below, as the precautions have not been identified with any precision, it is impossible to assess the burden of taking such undefined precautions.
  4. [107]
    As to the social utility of the activity that creates the risk of harm, it is a difficult phrase to deploy in an employment circumstances, but nonetheless it may be observed that the activity which creates the risk of harm is the sharing of accommodation in the staff facilities at Daydream Island. Broadly speaking, the social utility of the activity is to allow staff to operate the resort. I would accept that there is social utility in having staff available to operate the resort in terms not only of the provision of services to guests at the resort, but in the provision of employment. Furthermore, as discussed above, it is not a part of the plaintiff’s case that there ought to be a separate room for each employee, as is the custom in mining camps.
  5. [108]
    As discussed above, there is no evidence as to what appropriate screening of potential roommates would have been and whether it would have been effective and accordingly the precautions set out in paragraph 21(a) cannot be said to be a breach of duty of care, nor can it be shown to be causative of any loss.
  6. [109]
    As to paragraphs 21(b), (c) and (h), there is no evidence that Hewett suffered from sleep walking nor as to what the appropriate medical checks of Hewett would have been, nor in what way or how the outcome would have been any different had such undefined medical checks occurred. The only evidence in this regard is from Ms Anthony that the pre-employment medical or health assessments were undertaken and attached to the personnel files. There has been no precaution identified in paragraph 21(b) nor has it been shown that such precaution would have avoided the incident.
  7. [110]
    In respect of the breaches alleged at paragraphs 21 (d) and (g), I do not accept that the defendant failed to respond to Mr Schokman’s complaints with respect to Hewett’s behaviour. As set out above, the nature of the complaint was rather limited to Mr Schokman’s description of Mr Hewett being a little bit odd and a concern that Mr Hewett was a subordinate to Mr Schokman, therefore it was inappropriate that Mr Hewett share the same room as Mr Schokman. The response of Ms Anthony was to note Mr Schokman’s concern and to commence a process of investigating the possibility of a swapping of roommates. I consider that it was an adequate response to the complaint which was raised in circumstances as recorded by Ms Anthony that the shared accommodation facilities were full. I reject the proposition that the complaints raised by Mr Schokman with Ms Hansen and Ms Anthony obliged the defendant to immediately move Hewett from the shared accommodation with Mr Schokman. I consider such drastic action to be unwarranted on the basis of the complaints which I accept had been made, and the unavailability of other shared accommodation rooms.
  8. [111]
    In respect of paragraphs 21(e) and (f), as Mr Hewett was not called to give evidence and nor was any officer of the defendant called to provide evidence as to what instructions, if any, were given to Hewett, there is an absence of evidence as to what, if anything, Hewett was instructed. Given that the defendant had the opportunity through its staff or staff records to prove what, if anything, Mr Hewett was instructed but failed to do so, and because of the failure to provide instructions to Mr Schokman who was employed at a similar time to Mr Hewett in terms of paragraphs 21(e) and (f), I infer that the defendant did not provide any instructions to Mr Hewett of the type as referred to in paragraphs 21(e) and (f) with the exception in respect to paragraph 21(f) of the drug and alcohol policies included in what appears to be a standard form contract and the special direction as set out in [48] that alcohol could be consumed at the staff bar. [109]
  9. [112]
    The difficulty with determining breach in respect of paragraph 21(e) and (f) is that it was framed in a broad and therefore uninformative manner. Other than an instruction that Mr Hewett ought to act appropriately within the accommodation, or perhaps comply with a code of conduct, the content of which is not the subject of evidence, there is no evidence as to what instructions the defendant ought to have given to Mr Hewett.
  10. [113]
    In paragraph 70(e) of the Outline of Submissions on behalf of the Plaintiff,[110] it is argued the defendant has breached its duty of care by failing to:

“70....

(e)implementing and enforcing appropriate policies and codes of conduct that applied at all times, in relation to:

(i)alcohol availability and consumption; and

(ii)personal conduct and behaviour.”

  1. [114]
    Again, in a broad sense, it is easy to accept that a reasonable employer ought to have had an alcohol policy and a code of conduct relating to its shared accommodation facilities. However, there is no evidence as to what a reasonable employer would have included in those policies. As noted in paragraphs [9] and [10] above, in particular in the contract of employment,[111] in dealing with company housing and meals, the contract provided “[y]ou agree to abide by the conditions associated with living on Daydream Island as detailed in the Staff Village Regulations…”
  2. [115]
    As discussed in paragraph [9] above, that document was not proved by the plaintiff nor the defendant, nor was Mr Schokman asked any questions about his knowledge of any Staff Village Regulations, which were presumably contained in a document. Presumably, the plaintiff’s case is that a reasonable employer need not ban alcohol but ought to limit alcohol. Paragraph 74(a) of the Outline of Submissions on behalf of the Plaintiff contains a submission that the defendant’s breach of duty, by failing to have an alcohol policy and a personal conduct or behaviour policy, caused the urination event. The plaintiff’s submission is:[112]

“74.The employer failed to take these precautions. These failures clearly led to the circumstances of the subject incident and the plaintiff’s injuries:

  1. (a)
    had Hewett’s alcohol consumption been limited (through adoption and enforcement of appropriate policies), the urination event would more likely than not have been avoided;
  1. (b)
    had Hewett and the plaintiff not been required to share the same room either:
  1. (i)
    at all, following an appropriate risk assessment in respect of each of Hewett and the plaintiff (and the prospect of them sharing accommodation) in light of their conditions and working roles; or
  1. (ii)
    after each of Hewett and the plaintiff had complained regarding the incompatibility of the other as a roommate,

the urination event would have been avoided.

  1. [116]
    The plaintiff’s case is that an alcohol policy therefore would limit the amount of alcohol that a person residing in shared accommodation would be allowed to consume, however, the limit was not specified in evidence or in submissions, i.e. ought it be a prevention against intoxication and if so, intoxication at what level? Perhaps to the legal limit for driving, 0.05% blood alcohol level?
  2. [117]
    The report of Mr Fayez Devjee of 28 July 2020,[113] provides in respect of the code of conduct and company policies for the sharing of accommodation and the drug and alcohol policy, that the policies “would typically document that the bar (wet mess) is limited in how many drinks an employee is entitled to have and both drugs and alcohol being banned from rooms. Further, random and for-cause drug and alcohol testing is typically explained as a condition of employment…”
  3. [118]
    As stated in paragraph [10] above, the defendant did have as a condition of its employment random and for-cause drug and alcohol testing for all the attendances “at work.” As the staff facilities at Daydream Island were not in the nature of a FIFO or temporary accommodation, but rather permanent accommodation, it is difficult to accept that it is reasonable to ban all alcohol from the rooms. As to the documentation of the limit of how many drinks an employee is entitled to have, that begs the question as to what is the limit at the bar or wet mess that an employee ought to be allowed to consume?
  4. [119]
    In the present case, in the defendant’s case, it did provide a measure of control on the consumption of alcohol at the staff bar in requiring only those persons qualified in Responsible Service of Alcohol to serve the drinks. That is tantamount to the placing of a limit, however, such a limit is unspecified. Apart from the suggestions in paragraph 3.11, Mr Devjee opined at paragraph 3.2 that there ought to be “appropriate trade union consultation and input” on the formation of such policies. Suggestions by Mr Devjee do not provide sufficient evidence as to what a proper and appropriate code of conduct alcohol policy ought to contain or what instructions ought to be given to an employee in respect of shared accommodation.
  5. [120]
    In my view the requirement at page 3 of the contract of employment for persons to abide by the conditions associated with living on Daydream Island as detailed in the Staff Village Regulations does lead me to conclude that a reasonable employer would have a code of conduct and an alcohol policy in respect of staff living in shared accommodation facilities, however, there is not sufficient evidence as to what ought to be include in such policies.
  6. [121]
    In terms of s 305B(2) of the Act, I conclude that although the probability that an injury would occur if precautions were not taken is low and the likely seriousness of the injury is also low, the burden of taking such precautions to avoid the risk of injury by formulating appropriate policies and have staff abide by them is high. It is notoriously difficult to enforce a policy or law which attempts to prohibit or limit the use of an intoxicating substances such as alcohol. Forcing employees to submit to alcohol and drug tests when they commence work is one such manner to enforce such policies, however testing on their days off is another thing entirely.
  7. [122]
    In its denial of the allegations in paragraph 21 of the Further Amended Statement of Claim, by paragraph 8(e) and (f) of the FAD,[114] which states:

“8.

  1. (e)
    the defendant did give Hewett appropriate instructions with respect to his behaviour as set out in the bullying and harassment policy.
  1. (f)
    the defendant was not required to give Hewett any instruction with respect to appropriate levels of alcohol consumption in the reasonable discharge of their duties in circumstances where Hewett was on his own time outside of work hours.”
  1. [123]
    By paragraph 8(e), the defendant has positively asserted that it did have a bullying and harassment policy although there was no evidence as to what its content is, or whether it was provided to Hewett. I reject the defendant’s contention at paragraph 8(f) that it was not required to give Hewett any instruction with respect to appropriate levels of alcohol consumption in the reasonable discharge of its duties, however, that does not explain what instructions the defendant ought to have given. Whatever instructions the defendant ought to have given and whatever the code of conduct and alcohol policy provided, there remains the issue of the enforcement of such codes and policies on alcohol consumption on a tropical island. The only evidence on the burden of taking precautions is the comment by Dr Caponecchia at [42] “out of work hours” the employer “lacked ammunition” to be able to control workers’ behaviour[115].
  2. [124]
    The onus of proof on the plaintiff to prove breach of duty of care faces the difficulty of not only the lack of detail as to what appropriate alcohol or conduct policies ought to included, but what the defendant’s polices did include. In these circumstances, I cannot find that the defendant is in breach of its duty of care to the plaintiff in failing to have an appropriate alcohol policy and an appropriate code of conduct policy in respect of its shared accommodation facility. The lack of detail of such policies also creates significant issues in respect of causation.

Causation

  1. [125]
    Section 305D and 305E of the WCRA provide:

“305D  General principles

  1. (1)
    A decision that a breach of duty caused particular injury comprises the following elements—
  1. (a)
    injury ( "factual causation");
  1. (b)
    it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused ("scope of liability").
  1. (2)
    In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection(1) (a)—should be accepted as satisfying subsection(1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
  1. (3)
    If it is relevant to deciding factual causation to decide what theworkerwho sustained an injury would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph(b); and

(b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

  1. (4)
    For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.

305E Onus of proof

In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

  1. [126]
    In terms of factual or “but for” causation, as provided in s 305E, the onus of proof is upon Mr Schokman. In determining factual “but for” causation and on the balance of probabilities it must be determined that it is more probable than not that, had the defendant had a code of conduct or an alcohol policy, the urination event would not have occurred. This requires an assessment of whether an alcohol policy which placed some undefined limit on the consumption of alcohol had been in existence, and provided to Hewett, that Hewett would have abided by that policy and not become improperly intoxicated (improperly in the sense of exceeding the undefined limit) in the early hours of the morning of 7 November 2016.
  2. [127]
    As to Hewett’s behaviour at the time of the urination event, by paragraph 20 of the SDASOC, the plaintiff’s case is:

“20At the time of the urination event, Hewett:

  1. (a)
    was grossly intoxicated; or
  1. (b)
    was sleep walking; or
  1. (c)
    was in a state of intoxication induced sleep walking; or
  1. (d)
    was in a state of semi-consciousness.”
  1. [128]
    Whilst the act of Mr Hewett in vomiting and having hiccups approximately half an hour before the urination event does support the conclusion that Hewett, at the time of the urination event, was grossly intoxicated, the actions of Hewett after the event of profusely apologising and stripping Mr Schokman’s bed is not entirely consistent with Hewett being grossly intoxicated. There is no evidence that Hewett had any difficulty with sleep walking. I do, however, accept at the time of the urination event, Hewett was in a state of semi-consciousness precipitated by his level of intoxication.
  2. [129]
    The onus of proof on causation is upon Mr Schokman. It is for Mr Schokman to prove that it is more probable than not that had Mr Hewett been provided with a policy that prevented him from becoming improperly intoxicated, it is more likely than not that he would have followed that policy and not become intoxicated. There is limited evidence as to Mr Hewett’s antecedents or personality upon which to form a conclusion upon that issue. The limited evidence which is available comes from Mr Schokman and is that Mr Hewett was, it seems, regularly critical of management of the resort. There is nothing in the evidence to suggest that Mr Hewett, who was often critical of management at the resort would be more likely than not to abide by any particular policy formulated, provided or enforced by management at the resort. I conclude that the failure to provide an alcohol policy limiting to an undefined extent the consumption of alcohol was a necessary condition of the occurrence of the injury. I conclude that Mr Schokman has not proven on the balance of probabilities that “but for” the provision of the alcohol policy, the urination event would not have occurred.
  3. [130]
    I am conscious that the plaintiff had broadened his pleaded case in respect of breach of duty from existence of an alcohol policy to enforcement of an alcohol policy, however, there is no evidence as to what enforcement would have been effective in respect of the alcohol policy, let alone whether that enforcement would have been effective to prevent the urination event of 7 November 2016.
  4. [131]
    Further, in terms of scope of liability causation, s305D(1)(d), I consider that it is inappropriate in the present case for the scope of the liability of the defendant to extend to the injury so caused. I conclude that scope of liability causation has not been proven as the urination event constituted an act of assault by one employee, Mr Hewett, upon another employee, Mr Schokman, in circumstances where I find that the act of the assault was not a deliberate assault, but rather represents a mistake by Hewett, precipitated by Mr Hewett’s alcohol consumption, as to the whereabouts of a toilet in the early hours of the morning on 7 November 2016.
  5. [132]
    As is shown in Exhibit 1,[116] the photograph of the room, Mr Schokman’s bed was located in close proximity to the toilet and I find that the likelihood is that Mr Hewett had intended to urinate into the toilet, but due to his state of intoxication and the late hour, he had made the error of urinating upon Mr Schokman. In those circumstances, I do not consider that it is proper to visit the urination event and responsibility for the injury caused by the urination event to be upon the employer defendant.
  6. [133]
    In the present case there is no evidence that Hewett had any problems with alcohol nor had been involved in any prior incidents with respect to alcohol. Furthermore, there is the evidence of MsHansen generally that alcohol incidents among staff were uncommon.[117] Given that it was not only a contractual requirement of employees to share accommodation but likely a necessary requirement for the conduct of the resort (as the staff accommodation was full), it is inappropriate that the defendant be held responsible for the act of MrHewett.
  7. [134]
    In respect of the code of conduct, as it is undefined, I am unable to conclude on the balance of probabilities that had a code of conduct been provided it would, more likely than not have prevented the event in question. The view I take in respect of causation in respect of the alcohol policy in terms of both factual and scope of liability of causation is the same in respect of the code of conduct and the lack of code of conduct in breach of duty of care.

Vicarious Liability

  1. [135]
    Paragraph 93 of the Outline of Submissions on Behalf of the Plaintiff state:[118]

“93. There can be no doubt that Hewett committed a tort against the plaintiff. The evidence is insufficient to make a finding that it was committed intentionally, but notwithstanding, the actions of Hewett were undoubtedly committed in the course of his employment with the defendant. He was accommodated in that room with the plaintiff in furtherance of his employment with the defendant. The defendant, by placing Hewett in such close proximity to the plaintiff in such a vulnerable, intimate setting provided the occasion for the incident to occur. The connection between Hewett’s wrong and the employment enterprise is so powerful as to justify a finding of vicarious liability.”

  1. [136]
    I accept that Hewett committed a tort against Mr Schokman and that the evidence is insufficient to make a finding that it was committed intentionally. I do not accept that the actions of Hewett were committed in the course of his employment with the defendant. In the Canadian Supreme Court case of Bazley v Curry,[119] McLachlin J said:[120]

“Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer’s enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.”

  1. [137]
    In Prince Alfred College Inc v ADC,[121] Gageler and Gordon JJ considered the approach of McLachlin J in Bazley v Curry to be instructive. Utilising the approach of McLachlin J in Bazley v Curry, the question to be answered is whether there is a connection or nexus between the employment enterprise and the wrong that justifies the imposition of vicarious liability on the employer for the wrong in terms of a fair allocation of the consequence of the risk and/or deterrence.
  2. [138]
    In the present case I conclude that there is not a connection or nexus between the employment enterprise and the wrong committed by Mr Hewett that could justify the imposition of vicarious liability on the defendant for Mr Hewett’s wrong. I do not consider it a fair allocation of the consequence of the risk to impose vicarious liability upon the defendant employer for the drunken misadventure of Mr Hewett in respect of his toileting. Whilst I accept the occasion for the tort arose out of the requirement of shared accommodation, I do not consider that of itself, or coupled with the risks as discussed above inherent in sharing accommodation leads to a conclusion that it is fair that the defendant be held vicariously liable for Mr Hewett’s wrong. In this case, there is no history of MrHewett becoming intoxicated or having an intoxication related incident that would put the defendant on notice that Mr Hewett more than any other person may have engaged in the bizarre conduct which forms the urination event.

Quantum

  1. [139]
    By paragraph 23 of the Second Further Amended Statement of Claim (“SFASOC”), Mr Schokman alleges that the urination event caused him an aggravation of pre-existing narcolepsy and cataplexy and a psychiatric disorder. Mr Schokman claims $131, 200 in general damages (an ISV of 50). The defendant admits that there was a temporary aggravation of a pre-existing narcolepsy and cataplexy but denies that Mr Schokman suffered from any psychiatric injury. In respect of the aggravation of pre-existing narcolepsy and cataplexy, paragraph 24 of the SFASOC pleads Mr Schokman has suffered from a 20% whole person impairment. By paragraph 25, Mr Schokman pleads that his psychiatric injury has caused him to suffer a chronic post-traumatic stress disorder and/or adjustment disorder with mixed anxiety and depressed mood with a 7% whole person impairment assessed according to the psychiatric impairment rating scale (PIRS).
  2. [140]
    The 20% whole person impairment referred to in paragraph 24 of the SFASOC is sourced from the opinion of Dr Brown, sleep physician, of 24 July 2019.[122] This assessment was made by Dr Brown after having one examination only on 15 July 2019. Dr Brown, after referring to table 13-4 of the AMA 5th Ed tables, the criteria rating due to sleep and arousal disorders. Dr Brown opined:[123]

“According to this criteria, I would regard Mr Schokman as having a Class 2, 10%-29% of the whole person. This relates to a reduced daytime alertness, and interference with the ability to form some activities of daily living. Within this range of rating impairment, I would attribute a 20% impairment of the whole person to the exacerbation of his cataplexy following the work-related incident.”

  1. [141]
    Specifically, in respect of pre-existing impairments, Dr Brown recorded:[124]

“His narcolepsy was previously well-controlled on treatment measures with Xyrem and appropriate management strategies. I have classified Mr Schokman as having a 20% impairment due to the exacerbation of his narcolepsy, not due to the entirety of his narcolepsy condition.”

  1. [142]
    Dr Brown then apportioned nil between the current and pre-existing impairment.
  2. [143]
    On 11 June 2020, Dr Brown was sent a file comprising 1,766 pages of information, which he read, and opined in his supplementary report:[125]

“The factors which led me to conclude there was an ongoing contribution regarding to exacerbation of his narcolepsy condition with the assault incident were specific recall and stress factors experienced by Mr Schokman. It is possible and likely that these may become less prominent with time. This is in part supported by the study results and social media postings which I have included in the brief. The specialty psychiatric reports also support this trend.

I do have some reservations that the social media and academic record content do not describe the entire picture as far as total clinical control of the condition is concerned.

I do accept that his medical reports are reassuring and his level of function appears to have improved.”

  1. [144]
    Dr Zappala, sleep physician, examined Mr Schokman on 3 December 2019. In Dr Zappala’s report of 3 December 2019,[126] Dr Zappala assessed Mr Schokman as having a 50% impairment of the whole person under table 13-4 of the AMA 5th Ed. At the time of his assessment Dr Zappala recorded Mr Schokman as having significant cataplexy attacks every two to three days, manifesting themselves in knee buckling and a sense of paralysis lasting for a minute or two.
  2. [145]
    Just like Dr Brown, Dr Zappala was sent a brief of information from the defendant’s solicitor and commented in a supplementary report:[127]

“Yes, based on the additional information, it is possible MrSchokman’s narcolepsy and cataplexy symptoms may have returned to pre-injury levels and/or improved

I agree the additional information presents an individual who, while still suffering from symptoms, has a low level of disability.”

  1. [146]
    A memorandum of a conversation between Dr Zappala and the plaintiff’s legal team of 18 January 2021 was tendered.[128] It records, inter alia:

“Dr Zappala is of the opinion that it comes down to what is accepted as the actual representation of the plaintiff’s symptoms and his current condition.

Dr Zappala says that converting the condition to whole person impairment under AMA5 is really difficult. This is because of the fact that some of the patient’s abilities are really high, but others are really low. There is not uniformity of disability.

Dr Zappala suggested the current cause of his cataplexy could be the fear of cataplexy and trying to manage that. The incident happened a long time ago, the triggers have changed a little bit over time. There appears to be a psychiatric overlay.

Dr Zappala hopes the plaintiff’s condition may improve a little once litigation over [sic] as that will be an important part of his recovery.”

  1. [147]
    Importantly, Dr appala opined, that cataplectic vulnerability could increase if someone loses confidence or finds other aspects of their life becoming hindered or impaired and that “oxybate would be less useful in the face of the increasing stimuli and anxiety and difficulty with, you know, managing those sorts of emotions and mental health issues.”[129]
  2. [148]
    Dr Zappala’s opinion of the plaintiff’s impairment was based upon Dr Zappala’s understanding of the symptoms in December 2019 of Mr Schokman having significant cataplectic attacks with knee buckling and a sense of paralysis lasting for a minute or two every two to three days.[130] Upon the factual basis that Mr Schokman had not had a serious cataplectic attack at work for the approximately eight or nine months since June/July 2020, which I accept to be the evidence,[131] Dr Zappala commented that it “would be reassuring that the pressure on the cataplexy frequency and intrusion is potentially dropping away and would all be well for it coming under better control in the future as well.”[132]
  3. [149]
    After referring to the records of the Dr Cistulli, Dr Zappala said:[133]

“Well, I mean, here is a respected physician who’s making observation in an assessment that he feels that the narcolepsy was well controlled and in addition, from a tiredness and sleep perspective, not from a cataplexy perspective, that a maintenance awakefulness test was undertaken and that Mr Schokman performed normally on this. So this would strongly suggest that daytime tiredness was not a factor in loss of performance or – or difficulty during the day. So this would be the same sort of test, for example, that we would use if you had a driver who was on therapy or CPAP for sleep apnoea and wanting to show that their day time vigilance and alertness was normal and the test results referred to in that correspondence, in that note, suggest that that result was normal.”

  1. [150]
    Dr Zappala said having been through a number of stressors which were said to be significant, that is the dropping of the court case against Mr Hewett, the loss of Mr Schokman’s employment at Daydream Island and considered that it was a very fair statement to state:[134]

“Going through those aspects of the loss of the job, dropping of the court case, the depression and with respect to the event itself, it would be impossible to disentangle from your perspective what of those contributed and then what amounts to an increase in vulnerabilities, the cataplexy attacks.”

  1. [151]
    With those same stressors (that is the court case, loss of job etc), Dr Brown opined that all were very significant emotional triggers or emotional stressors that would have had a significant impact upon Mr Schokman’s frequency and possible severity of cataplexy events.[135]
  2. [152]
    In Exhibit 2, Mr Schokman’s quantum statement, Mr Schokman has set out his “current situation”.[136] Mr Schokman states:[137]

“I continue to suffer from regular cataplexy attacks which vary between a quick muscle droop (partial cataplexy) and at their worst up to two minutes (full cataplexy) at which times I am fully conscious but am aware that I am paralysed...”

  1. [153]
    Both Drs Brown and Zappala accept that the diagnosis is based upon an accurate representation by Mr Schokman of his symptoms. There is difficulty in this regard because both Dr Brown and Dr Zappala’s assumptions are premised upon regular full cataplectic events, whereas, as Mr Schokman points out in paragraph 73 of his quantum statement,[138] although there may be regular cataplectic attacks, they vary between the partial cataplexy which might be a quick muscle droop of not much consequence, up to a full cataplectic attack where there is a full paralysis. It would appear the full cataplectic attacks are quite dramatic as Mr Schokman says:[139] “[i]f I have a full cataplexy attack, I have difficulty functioning for half a day”. Whereas with a partial cataplexy or droop attack, Mr Schokman says he is “aware of loss of muscle tone and I am like a ‘rag doll’. If I am holding something, I usually drop it.”[140]
  2. [154]
    Mr Schokman has an impressive education. Mr Schokman completed his Bachelor of Science between March 2009 and January 2013. Mr Schokman commenced a graduate certificate in clinical epidemiology on 29 February 2016, however, it appears that the narcolepsy and cataplexy intervened and so he withdrew from that course. Prior to that and in January 2014, Mr Schokman had made an application to study a Masters of Philosophy in Medicine, however he also withdrew due to the cataplexy and narcolepsy. On 1M arch 2017, Mr Schokman recommenced study of the Masters of Philosophy in Medicine and completed that Masters course on 18 January 2019. Mr chokman then commenced his Doctorate of Philosophy in Medicine in February 2019 and his view is to complete the PhD in February 2022. As part of his PhD, Mr Schokman receives a stipend of $27,596 per annum and does part time tutoring as well between 3 to 6 hours per week.[141]
  3. [155]
    Mr Schokman has received University of Sydney post graduate awards. Mr Schokman recommenced driving a motor vehicle in 2020. Mr Schokman concedes that his cataplexy fluctuates.[142] In 2018 Mr Schokman presented a brief two minute presentation at the World Psychology and Psychiatric Conference in Melbourne[143] and had a partial cataplexy attack, that is, he felt he ought to sit down and that occurred “about half an hour or an hour afterwards”.[144]
  4. [156]
    Mr Schokman confirmed he had had partial cataplectic attacks, i.e. droop attacks, whilst working in his university research project but had not had, I would interpret, a full cataplectic attack at work since June or July 2020.[145] I find therefore as a matter of fact that Mr Schokman’s cataplectic attacks have reduced significantly from the serious full cataplectic attacks occurring every two to three days in or about December 2019 as reported to Dr Zappala[146] to the current situation where Mr Schokman infrequently has full cataplectic attacks and has not had a full cataplectic attack at work since June or July 2020.
  5. [157]
    The factual basis for Dr Zappala’s assessment of permanent impairment of 50% has not been made out and I therefore do not accept Dr Zappala’s opinion as to the level of permanent impairment. Although Dr Brown’s brief report of 24 July 2019[147] does not descend to particularity as to the regularity of full or partial cataplectic attacks, I conclude that Mr Schokman’s current cataplectic symptoms are far less than they were in July 2019. I therefore consider that the 20% opined by Dr Brown somewhat overstates the current level of permanent impairment.
  6. [158]
    The table of maims contained in schedule 9 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) does not have a category like Table 13-4 of AMA5 for sleep disorders. Schedule 8 to the Regulations states in s 1:

“[i]n assessing the injury scale value (ISV) for an injury mentioned in the injury column of schedule 9, a court must consider the range of injury scale values stated in schedule 9 for the injury.”

  1. [159]
    The problem with the application of s 2(1) in the present case is that the sleep disorders of narcolepsy and cataplexy are not injuries “mentioned in the injury column of schedule 9”. The answer to the problem is provided by McMeekin J in Munzer v Johnston & Anor:[148]

[9]The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.”

  1. [160]
    In written submissions, counsel for the plaintiff submits that the item ought to be characterised as an Item 7, moderate brain injury with an ISV of 50. I do not consider this appropriate to call a sleep disorder a brain injury, however, if that were the appropriate category, in my view the injury would fall into an item 8 minor brain injury with an ISV range of 6 to 20.
  2. [161]
    In paragraph 14(c) of the Further Amended Defence, the defendant has pleaded the reasonable assessment of the plaintiff’s damages is an ISV of 10. I do not accept that is an appropriate assessment. In the present case the dominant injury is the sleep disorder, narcolepsy and its associated cataplexy which has been exacerbated by the urination event. As both Drs Brown and Zappala point out, Mr Schokman’s mental state is extremely important with respect to managing the cataplexy.
  3. [162]
    In respect of the exacerbation of the narcolepsy and cataplexy and to reflect the adverse level of impact of the injury. I conclude that the following factors favour a finding of an ISV level of 15.
    1. (a)
      Although the conditions were pre-existing they were essentially dormant as they were well controlled by medication and planning;
    2. (b)
      Mr Schokman has excelled in his career as an academic;
    3. (c)
      Mr Schokman drives a car;
    4. (d)
      Full cataplexy attacks are currently uncommon;
    5. (e)
      The level of whole person impairment is in the range of 10% to 20%.
    6. (f)
      Mr Schokman has regular minor cataplexy attacks.
  4. [163]
    As to the psychiatric injury accepted by the defendant as a short-term psychiatric injury, Dr Shaikh provides a diagnosis of an adjustment disorder with mixed anxiety and depression with a 0% whole person impairment.[149] Dr Chung has a diagnosis of post-traumatic stress disorder as well as an adjustment disorder with mixed anxiety and depressed mood.[150]
  5. [164]
    I accept Mr Schokman may have suffered from post-traumatic stress disorder at the time of the accident as his complaints of being unable to breathe were reported to police and included in Mr Schokman’s police statement of 10 November 2016.[151]
  6. [165]
    However, I find that Mr Schokman has improved considerably since that time such that his post-traumatic stress disorder is in remission and that his ongoing psychiatric injury is properly diagnosed as an adjustment disorder with mixed anxiety and depressed mood. It is to be noted that Dr Chung’s diagnosis of both conditions were said to be caused by Mr Schokman’s “sense of injustice and unfairness and also the ongoing exacerbation of his physical illness resulting in various functional disabilities”.[152]
  7. [166]
    In respect of the PIRS assessment, the evidence, which I accept of Mr Schokman’s current condition is that Mr Schokman is classified as a class 1 for self-care and personal hygiene, class 3 for social and recreational activities, class 1 for travel, class 2 for social functioning, class 1 for concentration, persistence and pace, and class 2 for adaptation.
  8. [167]
    The assessments for social and recreational activities, travel and social functioning are the same as assessments made by Dr Chung. There is, however, no evidence to support a class 2 assessment for self-care and personal hygiene at the present time and the information recorded by Dr Chung does not, in my view, justify the imposition of a class 2 for self-care and personal hygiene. For example, the reference to “he has been avoiding crowds” is not relevant to self-care and personal hygiene but rather relevant to social and recreational activities and social functioning.
  9. [168]
    With respect to concentration, persistence and pace, Mr Schokman is an impressive person with an impressive academic record. The example given for class 1 impairment for concentration, persistence and pace is “can complete vocational education and training or a university course within the normal time frame”. In my view this is clearly the case in respect of Mr Schokman.
  10. [169]
    With respect to adaptation, Mr Schokman’s employment within his PhD and tutoring plainly places him in a class 2 mild impairment. I calculate the median class value as 2 in accordance with s 6 of schedule 10, with an aggregate score of 10 which quantifies (according to s 7 the conversion table), a PIRS level of 5%. The psychiatric injury is therefore an Item 12 moderate mental disorder with an ISV of 2 to 10.
  11. [170]
    Of itself, the psychiatric disorder would score an ISV towards the bottom of the range, that is an ISV of 4. Applying the principles in assessment of multiple injuries, as discussed by McMeekin J in Munzer v Johnson (supra) and rating the cataplexy and narcolepsy at an ISV of 15, I consider there ought to be a slight uplift to an ISV of 17. Accordingly, I assess general damages at $29,590.

Economic Loss

  1. [171]
    The plaintiff’s submission on past economic loss is to make an allowance of a loss of $1,000 nett per week from cessation of employment on 12 December 2016 until commencement of Mr Schokman’s university studies on 15 February 2019, a period of 113 weeks and thus a sum of $113,000. An additional sum of $22,400 is sought for the loss from 15 February 2019 to date for the inability to pursue additional income from tutoring or part time hospitality work whilst working at the university and the loss is quantified at $200 per week for a further 112 weeks. The total sought for past economic loss is $135,400. The amount is similar to that sought in the SFASOC.
  2. [172]
    The defendant, on the other hand, quantifies past economic loss at $73,450 being the same 113-week period from 12 December 2016 to 15 February 2019 at a loss of $650 npw. The defendant’s case is that Mr Schokman would then have gone back to academia and accordingly has not lost any further income. In its Further Amended Defence paragraph 15(e), the defendant has pleaded its case that past economic loss is limited to the Workers’ Compensation and Rehabilitation payments which are a sum of $104,437.95.[153] The defendant’s argument for loss of $650 per week is based upon the acceptance of the plaintiff’s income whilst working at Daydream Island at $750 npw and then deducting $70 per week in subsidised board and $70 per week for meals, leaving a nett of $610 which was then rounded up to $650 as Mr Schokman’s employment was terminated and the resort was closed down by Cyclone Debbie.
  3. [173]
    I consider it inappropriate for $70 to be deducted for subsidised board and $70 to be deducted for meals, as had Mr Schokman not been employed at Daydream Island but somewhere else, it is almost certain that his board and meal payments would have exceeded $140 per week. Accordingly, the defendant has subsidised Mr Schokman’s meals and accommodation and that leads to a higher loss being suffered, however, as submitted by the defendant, there is no evidence as to the value of those offset benefits. A conservative estimate of the offset benefits would be a sum of at least $100 per week which quantifies the loss at $96,050 (113 weeks x $850 per week). In addition, there is some loss from tutoring services, however, it would not seem to be a large loss and has not been specifically proven. It seems to me that the proper quantification of past economic loss can be undertaken by any number of the methods that I have considered, however, the proper range is in the vicinity of $100,000. In the circumstances, I consider it is appropriate to adopt the defendant’s case as set out of paragraph 15(e) that the past economic loss is limited to the workers’ compensation and rehabilitation payments in the sum of $104,437.95.
  4. [174]
    The parties agree that the past loss of occupational superannuation benefits ought to be allowed at 9.5% of the assessed sum.
  5. [175]
    There is a substantial dispute with respect to the quantification of loss of economic capacity. On behalf of Mr Schokman it is submitted that $500,000 ought to be allowed for loss of economic capacity. The plaintiff’s submission in his first written submissions is:[154]

“61.Conservatively the plaintiff could earn $100,000 gross as a full time university lecturer. He will now be restricted to part time work. After tax that converts to approximately $75,000 or $1,500 npw. Conservatively, his weekly loss per week will be in the order of $600 npw. A $600 loss over the course of say 35 years (retirement age 65) yields $525,000. After discounting for contingencies, $500,000 is the appropriate award for loss of economic capacity.”

  1. [176]
    The defendant submits that there is no impairment of economic capacity “or if there was it was not frank”[155] such that a nominal amount of $50,000 to $100,000 “is appropriate”. I do not accept the defendant’s submission. I do not accept that Mr Schokman was “not frank”. To the contrary, Mr Schokman has returned to academia, for which he is eminently suited and performed at a very high level. Furthermore, I accept the evidence of Dr Zappala that there appears to be some permanent worsening of the cataplexy insofar as it appears to become more resistant to the Xyrem post-accident.
  2. [177]
    Whilst past earnings may be a guide to economic capacity, they are not a proper measurement of it and Mr Schokman’s case is a good example of that well-known principle. Mr Schokman was working in hospitality to gain an income to allow him to take the appropriate medication, Xyrem, to control his cataplexy. Mr Schokman not only impressed as an intelligent person, his university results attest to that conclusion. It is Mr Schokman’s case that he would have returned to academia as he has done, however, that does not mean there has not been an impediment to his economic capacity. Plainly there has.
  3. [178]
    In my view the most appropriate approach to assessment of the damage of Mr Schokman’s economic capacity is to assess that damage as a loss of one-third of Mr Schokman’s economic capacity of $1,500 npw and allow a loss therefore of $500 npw. The loss ought to be allowed to the usual retirement age of 67, i.e. 37 years hence (discount factor 894). A loss of $500 multiplied by 895 is a sum of $447,000. From this a modest discount of about 10% discount for all vicissitudes ought to be allowed, quantifying loss of economic capacity at $400,000.
  4. [179]
    I consider it appropriate to adopt the rate of 11.33% for future loss of superannuation as it is the rate adopted in the defendant’s submissions and accords with Heywood v Commercial Electrical.[156]
  5. [180]
    As to the other heads of damages, Fox v Wood is agreed at $18,965. There is some small but surprising debate as to the proper quantification of special damages. Utilising the unchallenged figures the quantum statement,[157] and schedules B, C, and D, I quantify WorkCover specials at $26,078.84 ($11,515 + 9821.60 + 4742.24) the Medicare Australia refund at $3,154.75, and the out of pocket expenses at $2,411.53.
  6. [181]
    In respect of future treatment and medication, the plaintiff seeks a global sum of $10,000 and the defendant urges a global sum of $5,000. It is appropriate that a global amount be awarded as, whilst Mr Schokman may require special psychological treatment in the future, and be required to consume some medications for his conditions, it is impossible to be dogmatic as to a method of quantification. Although the Xyrem is expensive, Mr Schokman was on the medication prior to the accident and remains on that same medication. In those circumstances, a midpoint qualification of $7,500 is appropriate.
  7. [182]
    My assessment of quantum is as follows:

Pain and suffering

$29,590.00

Past economic loss

$104,437.95

Loss of superannuation benefits (past)

$9,921.60

Loss of economic capacity

$400,000.00

Loss of superannuation benefits (future) @ 11.33%

$45,200.00

Out of pocket expenses

$2,411.53

WorkCover special damages

$26,078.84

Medicare Australia refund

$3,154.75

Future treatment and medication

$7,500.00

Fox v Wood

$18,965.00

Subtotal

$647,259.67

Less WorkCover refund

$215,520.79

TOTAL

$431,738.88

Conclusion

  1. [183]
    I give judgment for the defendant against the plaintiff.

Footnotes

[1] Exhibit 2.

[2] Exhibit 13.

[3] Exhibit 2.

[4] Exhibit 2.

[5] T1-78.

[6] Exhibit 1, document 2.

[7] Exhibit 1, document 2.

[8] Exhibit 1, document 1.

[9] Exhibit 1, document 1.

[10] Exhibit 1, document 1.

[11] Exhibit 1, document 1, page 70-71.

[12] Exhibit 2, paragraph 24.

[13] T2-72.

[14] T2-75.

[15] See generally T2-72 to T2-75.

[16] T2-73.

[17] T2-72.

[18] Exhibit 1, document 1, page 46-49.

[19] Exhibit 1, document 1, page 46-49.

[20] Exhibit 4.

[21] Exhibit 4.

[22] Exhibit 1, document 9.

[23] T2-4.

[24] See above at [14].

[25] Exhibit 1, document 1, page 46.

[26] Exhibit 1, document 9.

[27] Exhibit 1, document 5.

[28] Exhibit 1, document 9, page 5.

[29] Exhibit 1, document 9.

[30] Exhibit 1, document 9, page 5.

[31] Exhibit 1, document 1.

[32] See above at [14].

[33] Exhibit 1, document 1, page 46.

[34] T2-67.

[35] T2-7.

[36] Exhibit 1, document 11.

[37] Exhibit 1, document 12.

[38] T2-12, lines 40-45.

[39] T2-13 to T2-14.

[40] Exhibit 25.

[41] Admitted in Defence at [1].

[42] Exhibit 1, Tab 1, p.61; T2-70.

[43] Paragraphs 3 to 8 admitted in Defence at [1].

[44] Admitted in Defence at [5].

[45] T2-75.

[46] Deemed to be admitted.

[47] Exhibit 25.

[48] T1-25.

[49] T5-20.

[50] Exhibit 25.

[51] T1-21.

[52] Exhibit 1, tab 1.

[53] T1-26, line 39; T1-27, line 13.

[54] T1-26, lines 34-36; T1-27, lines 3-13; T1-27, lines 31-33.

[55] T1-27, lines 10-20.

[56] T1-27, lines 2-13.

[57] T2-72, lines 19-20.

[58] T2-71 to T2-75.

[59] T2-75, lines 35-40.

[60] T1-26, lines 23-24,

[61] T1-53 to T1-54.

[62] T1-54.

[63] T1-26 lines 38-43 T1-27, line 24.

[64] T1-27, lines 3-14.

[65] T1-27, line 24.

[66] T1-55, lines 1-2.

[67] Exhibit 1, tab 1, page 46.

[68] T2-50.

[69] Exhibit 1, tab 1, page 46.

[70] Exhibit 1, tab 1, page 46.

[71] Exhibit 1, tab 1, page 46.

[72] At T2-54 lines 5-10.

[73] Exhibit 1, tab 1, page 46.

[74] T1-54.

[75] T1-54, lines 25-40.

[76] T1-55, lines 1-4.

[77] Exhibit 1, tab 1, page 46.

[78] T1-47.

[79] (2007) 234 CLR 330 at 337-338 [18].

[80] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 345-346 [43]-[45].

[81] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330.

[82] Second Further Amended Statement of Claim filed 19 January 2021.

[83] Filed by leave on 6 May 2021.

[84] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 346 [45].

[85] [2016] QSC 304.

[86] At [97].

[87] Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304.

[88] Tunney v Midland Railway Company (1866) LR 1 CP 291.

[89] Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304.

[90] (1935) 53 CLR 273.

[91] (1935) 53 CLR 273.

[92] At 282-283.

[93] (1935) 53 CLR 273.

[94] Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304.

[95] Second Further Amended Statement of Claim filed 19 January 2021, para 4.

[96] (2001) 206 CLR 512.

[97] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 345 [45].

[98] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 346 [46].

[99] (1935) 53 CLR 273.

[100] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 337 [18].

[101] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 337 [18].

[102] [2011] NSWSC 292.

[103] [2020] QSC 329 at [77], [82].

[104] Exhibit 25.

[105] [2013] 1 Qd R 319.

[106] Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at 333 [26].

[107] Exhibit 17.

[108] Exhibit 1, document 11.

[109] As referred to in paragraph [10] above.

[110] Exhibit 27.

[111] Exhibit 1, tab 1, page 3.

[112] Exhibit 27.

[113] Exhibit 1, document 9, paragraph 3.1.

[114] Filed by leave 4 May 2021.

[115] T2-12, lines 40-45.

[116] Exhibit 1, tab 5.

[117] T2-73 to T2-74.

[118] Exhibit 27.

[119] (1999) 174 DLR (4th) 45.

[120] At [37].

[121] (2016) 258 CLR 134 at 172 [129].

[122] Exhibit 13, page 6.

[123] Exhibit 13, page 6.

[124] Exhibit 13, page 6.

[125] Exhibit 14 page 2.

[126] Exhibit 3, tab 11.

[127] Exhibit 3, tab 12, page 1.

[128] Exhibit 3, tab 13.

[129] T2-44, lines 10-18.

[130] Exhibit 3, tab 11.

[131] T1-75.

[132] T2-45, line 15-19.

[133] T2-46, lines 39-40 to T2-47 line 2.

[134] T2-47, line 4-8.

[135] T3-3 line 45 to T3-4 line 5.

[136] Exhibit 2, para 69 – 77.

[137] Exhibit 2, para 73.

[138] Exhibit 2.

[139] Exhibit 2, para 73.

[140] Exhibit 2, para 73.

[141] T1-58 lines 5-10.

[142] T1-70.

[143] T1-73 to T1-74.

[144] T1-74 line 2.

[145] T1-74 to T1-75.

[146] Exhibit 3, tab 11, page 2.

[147] Exhibit 13.

[148] [2008] QSC 162 at [9].

[149] Exhibit 12.

[150] Exhibit 3, tab 8.

[151] Exhibit 4.

[152] See Exhibit 3, tab 8, page 24.

[153] Exhibit 2, para 67(d).

[154] Exhibit 25, para 61.

[155] Exhibit 28, para 93.

[156] Heywood v Commercial Electrical Pty Ltd [2013] QCA 270.

[157] Exhibit2, para 67.

Close

Editorial Notes

  • Published Case Name:

    Schokman v CCIG Investments Pty Ltd

  • Shortened Case Name:

    Schokman v CCIG Investments Pty Ltd

  • MNC:

    [2021] QSC 120

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    27 May 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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