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This personal injury action brought under the Workers’ Compensation and Rehabilitation Act 2003 arose out of, in Justice Crow’s words, a “bizarre” incident that occurred in shared employee accommodation on Daydream Island. The plaintiff’s case was that, in breach of duty, the defendant failed to have an adequate alcohol policy and a code of conduct in place that would have prevented the incident. While Justice Crow accepted that the scope of the defendant’s duty of care extended to providing safe accommodation, his Honour held that breach of duty and causation had not been established. Justice Crow also held that the defendant would not, in any event, have been vicariously liable for the tort committed against the plaintiff by the other employee.
27 May 2021
From 2011, the plaintiff, Mr Shokman, had suffered from symptoms of narcolepsy and cataplexy. . By 2016, he had obtained access to medication that was effective in managing his conditions. . In 2016, the plaintiff obtained a position as a food and beverage supervisor on Daydream Island. . He informed a representative of the defendant of his conditions, and made arrangements for safe storage of his medication on the Island with the nurse employed by the defendant, Ms Hansen. –.
The employment contract signed by the plaintiff required him to live in shared accommodation at the resort. . He was required to share with another employee, Mr Hewett, who was subordinate to the plaintiff in the restaurant that they both worked in. –. The plaintiff complained to Ms Hansen about having to share accommodation with a subordinate in the same department and stated that he thought Mr Hewett was odd. –.
In the early hours of 7 November 2016, the plaintiff awoke from being asleep in his bed to find that Mr Hewett was urinating on him. –. Mr Hewett was intoxicated at the time. . The plaintiff left the room and began to have a cataplectic attack in the hallway. .
The plaintiff brought proceedings in negligence against the defendant for injury arising out of this incident.
It was accepted that the defendant owed a duty of care to the plaintiff. . The scope of that duty was in issue, however. Justice Crow determined that the scope of the defendant’s duty was to take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury; design, establish, maintain and enforce a safe system of accommodation; and, devise, establish and maintain a safe place of accommodation. –.
It was then necessary, in his Honour’s view, to correctly identify the relevant risk of injury. –. Justice Crow formulated the relevant risk as a risk of the plaintiff “having a confrontation or an unpleasant personal interaction with his designated roommate, Mr Hewett, which could give rise to a risk of injury to [the plaintiff]”. . Formulated in this way, Justice Crow considered that there was a risk which was reasonably foreseeable and which was not insignificant. –. The difficulty for the plaintiff was identifying the precautions that should have been taken by the defendant. . While the plaintiff contended that the defendant should have had appropriate alcohol and conduct policies, he did not provide sufficient detail as to what such policies ought to have included and what the defendant’s extant policies did include. –. Consequently, Justice Crow held that the plaintiff had failed to establish that the duty had been breached. .
Justice Crow also noted that the deficiencies in the plaintiff’s case also posed difficulties for causation. . In his Honour’s view, the plaintiff had failed to establish factual causation under s 305D of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) by showing that the incident would not have occurred had alcohol and conduct policies been in place and had been enforced. –. Furthermore, in the circumstances of the incident – an assault by another employee that was, according to Justice Crow, a mistake rather than deliberate – his Honour did not consider that the incident came within “scope of liability causation” in s 305D(1)(d) of the WCRA. .
Finally, his Honour held that the conduct of Mr Hewett, which was itself a tort, was not a tort for which the defendant would have been vicariously liable. This was because there was no “connection or nexus between the employment enterprise and the wrong committed by Mr Hewett”. . The fact that the requirement of shared accommodation provided the occasion for the tort was not enough. .
In the result, it was ordered that there be judgment for the defendant against the plaintiff. .
S Walpole of Counsel