Schokman v CCIG Investments Pty Ltd  QSC 120
Crow J – Rockhampton Supreme Court
Delivered on 27 May 2021
The plaintiff was a 25-year-old hospitality worker at the Daydream Island Resort. He suffered unusual injuries in highly unusual circumstances.
The plaintiff was the restaurant supervisor and as part of his employment contract he agreed to share accommodation. His flat mate was the ‘team leader’ which was a modestly inferior position.
In the early hours of 7 November 2016, the plaintiff woke up to his flat mate urinating in his mouth. It was common ground that what was described as the ‘urination event’ was an accident.
While there was a suggestion the event occurred due to the flat mate’s ‘gross intoxication’ or sleepwalking, His Honour found the incident occurred because he was ‘in a state of semi‑consciousness precipitated by his level of intoxication’.
The plaintiff had a pre‑existing condition of narcolepsy (a sleep disorder characterised by overwhelming daytime drowsiness and sudden ‘attacks’ of sleep) and cataplexy (a sudden and ordinarily brief loss of voluntary muscle tone triggered by strong emotions such as laughter or emotional stress).
The court accepted that, prior to the incident, the plaintiff’s previously serious conditions had been dramatically brought under control with the help of a drug called Xyrem. The court also accepted that although significant improvement had occurred prior to trial, anxiety caused by the ‘urination event’ had permanently aggravated the cataplexy.
The key factual findings were:
- That at the time the plaintiff accepted his job, he said he was able to function at close to 100% and the only concerns he raised were with respect to the storage of his medications which ‘were both expensive and attractive to persons wishing to abuse drugs’. Importantly, he did not tell the employer that being subjected to stress might aggravate his conditions. (He also did not ask to be removed from humorous situations.)
- He had signed an employment contract requiring him to live in shared accommodation.
- Despite giving evidence at trial that he had complained to management that the situation with his flat mate was a ‘pressure cooker situation’ the court found the plaintiff was ‘incorrect in his recollection’.
The contemporaneous documents created by the resort nurse, human resources manager and WorkCover’s customer adviser demonstrated the plaintiff had complained, inter alia, because he was ‘a little bit stuck up and prefers his own space and that [he] had underestimated the difficulty of sharing a room’. Further, that he did not want to share a room with a subordinate. His Honour preferred this evidence which did not demonstrate a safety basis for the pre-incident complaints.
Judgement / findings
In dismissing the plaintiff’s claim His Honour found:
- That contrary to the defendant’s submission that the relevant risk was the ‘urination event’ which was not foreseeable, that the risk was that the plaintiff would have a ‘confrontation or unpleasant personal interaction’ which was foreseeable.
- That in the absence of evidence about previous incidents between roommates or an alcohol problem, the employer did not have a duty to take any measures in response to the risk. Further, that after considering expert evidence from a human resources expert and a psychologist it was difficult to work out what reasonable measures the employer could have considered. In this regard, the plaintiff’s own human resources expert conceded that, during out‑of‑hours periods, the employer ‘lacked ammunition’ to be able to control a worker’s behaviour.
- That if the plaintiff had proven liability on the basis that the employer did not have a reasonable alcohol policy, he would not have proven this would have prevented the ‘urination event’.
- That there was ‘not a connection or nexus between the employment enterprise and the wrong committed’ by the flat mate to impose vicarious liability.
Discussion / implications
The specific issue that arose in this case is unlikely to arise again.
However, some key issues worth reinforcing are:
- It is very difficult for plaintiffs to persuade courts of evidence that is contrary to multiple contemporaneous accounts.
- It is not enough for a previous complaint to be made. The complaint must be in respect of a real safety issue.
- Especially in circumstances where both the risk of injury and the probability of its occurrence are low, the onus is on the plaintiff to prove some practical measure the employer could undertake to minimise the risk of injury with a fair degree of precision.
- Principles of freedom of contract still apply to work cases (i.e. in relation to the shared accommodation issue) and the court’s acceptance of the employer’s ‘lack of ammunition’ to do anything outside of work hours shows employer’s can treat workers like adults.
- Despite the employer’s successful defence, His Honour’s findings in respect of foreseeability were very broad (i.e. a risk of injury was foreseeable in respect of a confrontation or unpleasant encounter). This highlights that although employers need to consider a very broad range of risks, they don’t need to completely eliminate them.