CCIG Investments Pty Ltd v Schokman
High Court of Australia · 2023
CCIG Investments Pty Ltd v Schokman (2023) 278 CLR 165
An employer required two workers to share a room on a remote island. One, drunk and half asleep at 3 am, urinated on the other. The employer's contract put them in that room. Is it vicariously liable?
The opportunity and occasion line at [33] has not been altered. In AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, Gageler CJ, Jagot and Beech-Jones JJ at [44] say that this case "confirmed the conclusion in Prince Alfred College, that an employer can be vicariously liable for an intentional criminal act of an employee as such an act can be within the course of the employee's employment". Separately, Edelman J at [338] said that "objective factors relevant to a non-delegable duty, although previously described as part of an enquiry into 'vicarious liability', should be understood as concerned with a non-delegable duty rather than (true) vicarious liability", and his footnote cites Edelman and Steward JJ's reasons in this case at [70]-[73]. That is the view of one Justice in AA, so a student applying [33] should still ask whether the employment gave the occasion or only the opportunity, and, if asked which doctrine the factors belong to, should say that Edelman and Steward JJ in this case, and Edelman J in AA, treat them as belonging to non-delegable duty, and that the other Justices' reasons in this case use them within the connection inquiry.
What happened?
In late 2016 Mr Schokman began work as a food and beverage supervisor at Daydream Island Resort and Spa, off the Queensland coast. His employment contract said that, as the position required him to live on the island, "furnished shared accommodation" would be made available at $70 a week ([1]). He was first given a room to himself; then Mr Hewett, a team leader at the resort's restaurant, moved in, and the case was run on the basis that Mr Hewett's contract was in the same terms as to accommodation ([3]).
On the night of 6 November 2016 both men spent time at the staff bar ([4]). Mr Hewett returned to the room at about 3:00 am; about 30 minutes later Mr Schokman woke unable to breathe, with Mr Hewett standing over his bed urinating on him ([5]). Mr Schokman suffered a cataplectic attack, and had a history of these conditions, cataplexy and narcolepsy ([6]).
The trial judge, Crow J, accepted that Mr Hewett was in a state of semi-consciousness precipitated by intoxication, that he probably meant to urinate in the toilet and did so on Mr Schokman by mistake, and that the evidence did not support a finding that the act was intentional ([7]). Mr Schokman's claims against the employer, for breach of its own duty of care and for vicarious liability for Mr Hewett's negligence, both failed at trial ([8]). The Court of Appeal allowed his appeal on the vicarious liability claim, reasoning by analogy with Bugge v Brown that Mr Hewett was in the room as an employee, under his employment contract, and not as a stranger ([11]).
What did the Court decide?
The High Court allowed the employer's appeal with costs. It set aside the Court of Appeal's orders of 18 March and 5 April 2022 and, in their place, ordered that the appeal to that Court be dismissed with costs.
There were three sets of reasons: Kiefel CJ, Gageler, Gordon and Jagot JJ jointly; Edelman and Steward JJ jointly; and Gleeson J. All seven Justices agreed in the orders ([47], [90], [101]).
Proposition
What is the principle?
Where the employment did no more than provide the opportunity for an employee's wrongful act, the connection with the employment is tenuous and the employer is not vicariously liable; an employee placed in a special position by the employment, so that the ostensible performance of the employer's work gives occasion for the act, is a different case.
Kiefel CJ, Gageler, Gordon and Jagot JJ, at [33]: "Where no more can be pointed to than that the employment provides an opportunity for the employee's wrongful act to take place, the connection with the employment is tenuous. Such a circumstance is to be distinguished from that where an employee is placed in a special position by reason of the employment so that the act in question may be seen as one to which the ostensible performance of the employer's work by the employee 'gives occasion', to adopt the words of Dixon J in Deatons Pty Ltd v Flew. In such a circumstance the requisite connection would be present."
Their Honours applied it to the shared accommodation at [36]-[37]. Mr Schokman had argued by analogy with Prince Alfred College; they held that argument misapprehended that case, because "Mr Hewett was not assigned any special role concerning Mr Schokman and no part of what Mr Hewett was employed to do was required to be done in the accommodation" ([36]). The most the shared room did was create physical proximity, which "provided the opportunity for Mr Hewett's drunken actions to affect Mr Schokman" ([37]). The analogy with Bugge v Brown failed as well: there the act of lighting the fire "was itself a requirement of, and authorised by, the employment" ([41]), and here "[n]othing in the present case points to the drunken act in question being authorised, being in any way required by, or being incidental to, the employment" ([46]).
Those Justices also place the occasion approach inside the connection inquiry. They say that any special role created by the employment "may connect the act undertaken to the employment" ([23]), and that a test of sufficient connection "must be constrained by the outer limits of the course or scope of employment" ([20]).
Edelman and Steward JJ reached the same result by separate reasons. They divide what has been called vicarious liability into three areas of law, and say this appeal concerns only the second, liability for the wrongful acts of an employee that are "sufficiently or closely connected" with the employee's powers or duties of employment ([48]-[54], [85]). They put the question at [84] as "whether Mr Hewett's employment powers or duties were sufficiently and closely connected with his wrongful act that the act could be said to have occurred in the course of Mr Hewett's employment", and answered that Mr Hewett's act, around 3.30 am after drinking in his leisure time, was not ([87]-[88]). Their classification of non-delegable duty as a distinct third area is their own and is not in the reasons of the other four ([70]-[73]).
Gleeson J, at [96]: "Neither the employment nor the accommodation created anything more than the context or the location in which the tort was committed." Her Honour used the opportunity and occasion vocabulary ([95]) and noted that the contract terms the Court of Appeal relied on concerned accommodation when not working and not the work Mr Hewett was employed to do ([100]).
The claimant's position is a different question. In a claim for vicarious liability, "the focus is upon the position in which Mr Hewett was placed by the employment and what the employment entailed" ([38], Kiefel CJ, Gageler, Gordon and Jagot JJ). Mr Schokman's argument had concentrated on his own vulnerability, which those Justices said called in aid notions of a duty of care owed by the employer, a question that "does not arise in a case concerning the employer's vicarious liability" ([38]). The Court did not decide whether such a duty could have been established: Edelman and Steward JJ record that no non-delegable duty was pleaded or argued ([82]).
Why does this case matter?
Because the facts are an ordinary workplace arrangement, and the pull in such a case is to argue from how the claimant was treated: compelled to sleep in a shared room, vulnerable, housed by the employer. This case is a worked example of that argument being made in the High Court. The analogy that carried the claimant in the Court of Appeal was taken apart one feature at a time ([36]-[46]), which makes the case a model for testing an analogy with a decided case rather than accepting it because the facts look alike.
Exam and application relevance
Where an employer's arrangements put one person near another and the second harms the first, begin with the wrongdoer, not the victim: what was the employee employed to do, was any special role assigned in relation to the claimant, and was any part of the work done where the act happened?
Say what supplied the connection. Functional, geographical and temporal aspects of the course of employment ([15], [40]) were all absent: the act was at about 3 am, off duty, in the room he shared, outside the restaurant where he worked.
Keep the vicarious liability and the direct duty questions apart in your answer. Say that the Court was concerned with the former, and that it did not decide whether a duty claim, framed as a duty of care or a non-delegable duty, could have succeeded on these facts.
State the limit: the act here was found to be negligent, not intentional ([7]), so the Court did not determine liability for an intentional act on these facts. The four Justices discuss the opportunity and occasion distinction through decisions on deliberate wrongdoing ([31]-[34]) and say at [16] that an intentional or even criminal act may be committed in the course or scope of employment.
Check your understanding
1. What did the contract term about shared accommodation establish about Mr Hewett's role, and why did four Justices treat it as supplying opportunity only? 2. Which Justices expressed the line in terms of opportunity and occasion at [33], and how did Edelman and Steward JJ frame the same question? 3. Why did the analogy with Bugge v Brown fail? 4. What did the Court say about Mr Schokman's vulnerability, and what did it leave undecided? 5. The trial judge did not find that Mr Hewett acted intentionally. What did the Court therefore not determine on these facts?