Boundaries of Vicarious Liability: CCIG v Schokman – HCA special leave application successful

I refer to my earlier post, and by way of an update note, the High Court granted special leave for the employer to appeal on 16 September 2022.

Extract from the application for special leave to appeal:

EDELMAN J:   So, there had to be a tort that was found by the employee and it was the attribution of that tort rather than particular acts?

MR WALKER:  Yes.  And, if I may say so, we wish to offer, as an important, if incremental, step in the working out of this difficult area, which is in danger, as we say, of otherwise declining into a simply intuitive conclusion.

But the act, tortious by the employee, itself has to have a sufficient connection so as to render it, in the 18th century sense, just that the employer be held liable.  Where there is a remote camp, a worksite, a mining establishment, where there is an island resort, where there is itinerant work such as in aeroplanes, or buses or trucks, it may be assumed with any extended duration, not just of shifts, but of periods within which you are working shifts, that the performance of bodily functions, the concomitant need, say, for personal hygiene, will be necessarily part and parcel of the life that is the living, mode of living, of every employee.

            The question is whether to misuse, as we would put it, the notion of opportunity or occasion; whether the fact that people are bunking together – accommodated together – means that everything out of hours – notwithstanding it has no connection in any purposive sense ‑ to the work for which you are paid will be as a result of the occasion and opportunity provided by the necessary bunking together, though connected as to render an employer liable.

If that be true, then in truth there will not be any limit, except by recourse to the most unsatisfactory and impossibly vague notion idiosyncratic in its particular application, case-by-case, of whether the outcome is fair.  And in our submission, the Court should take the opportunity to use this case, which is a useful bookend to cases such as Prince Alfred, which is of prime – to which employment provided a particular occasion and opportunity and intimacy and vulnerability.

This is quite a different case; it might be thought, one hopes, to be a far more frequent kind of case, the non-criminal negligence, but in a respect where nobody could fairly or sensibly attribute the acts in question to anything called for by the employment.

It simply is not sensible and imposes no jurisprudential limit to possible liability, to say that the employment called for the employees, out of hours, to go about their ordinary living and whatever recreation or other conduct, including sleep, that they need to engage in as human beings.  That is a reductive approach which does not have the hallmarks of legal principle.

KEANE J:   Thanks, Mr Diehm.  Mr Walker, anything in reply?

MR WALKER:   Yes, may it please your Honours.  It is on page 69, going back to the quote from Sir Isaac Isaacs, in paragraph [40] compared with the way in which Justice McMurdo disposed of the matter in paragraph [42] that we submit the point arises for which we urge a grant of special leave, that is, the need to focus on the relation of the Act tortious by the employee as having or not having a sufficient connection so as to render it just to hold the employer liable.  The language adopted by Sir Isaacs includes:

“the course of the employment” or “the sphere of the employment” – is when the servant so acts as to be in effect a stranger in relation to his employer –

Now, that is a forceful way not of describing somebody who ceases to be an employee – far from it – the premise is that they are an employee, it is to focus upon the act, whereas in paragraph [42] that same figure of speech of being “a stranger” is extended, we submit, wrongly by his Honour to “not occupying the room as a stranger”.  But it is the urination on his roommate, that is the act about which the question should be asked and it is neither counterintuitive nor unreasonable, surely, for there to be an argument mounted that in urinating on your roommate you are so acting as to be, in effect, a stranger in relation to employer.


David Cormack

Brisbane Barrister & Mediator

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