Vicarious liability further defined by the High Court

5 minute read  08.12.2023 Jennifer Veiga, Chris Nliam

High Court unanimously rules employer not vicariously liable for employee's actions in employer-supplied shared accommodation, causing injuries to a colleague.


Key takeouts


  • Employers' liability for the negligent conduct of their employees requires more than the physical proximity between those employees and the claimant.
  • Vicarious liability requires regard to be had to all the circumstances of each case, not just the employment relationship between the employer and the negligent employee.
  • Different considerations may apply where the negligent employee occupies a special role within the employer's business.

This decision limits the scope of vicarious liability to acts that have a sensible connection with employment, that is, acts that are authorised, required by or incidental to employment rather than those where employment presents a mere opportunity for the act to occur.

Mr Schokman and Mr Hewett were employees of CCIG Investments Pty Limited (CCIG). Their employment required that they live together in a shared accommodation supplied by CCIG. Mr Schokman was awoken one morning to an intoxicated Mr Hewett urinating on his face (incident). As a result of the incident, Mr Schokman suffered injuries including post-traumatic stress disorder. He brought proceedings against CCIG, claiming that CCIG was vicariously liable for the negligent act of Mr Hewett because the act was done in the scope of Mr Hewett's employment.

Decision of the Supreme Court of Queensland

At the trial, the Supreme Court dismissed Mr Schokman’s claim. The judge found insufficient nexus between Mr Hewett’s act and his employment to justify a finding of vicarious liability against CCIG. The Court accepted that the incident arose out of the shared accommodation which was a requirement of Mr Schokman’s and Mr Hewett’s employment. However, a finding of vicarious liability was held to not represent a fair allocation of the consequences of the risk arising from the incident. The Court found that CCIG did not have a duty to take any measures in response to the risk of the incident occurring. Mr Schokman also failed to prove that any reasonable alcohol policy by the employer would have prevented the incident. Mr Schokman appealed the trial judge’s decision.

Decision of the Queensland Court of Appeal

The Court of Appeal allowed Mr Schokman’s appeal. It was found that the case was analogous to the High Court decision in Bugge v Brown (Bugge). In Bugge, an employer was held vicariously liable in circumstances where an employee had negligently lit a fire in the course of preparing a meal which spread and destroyed property on a neighbouring farm. In Mr Schokman’s appeal, the Court found the requisite connection between Mr Hewett’s action and his employment arose from the requirement by CCIG for him and Mr Schokman to share accommodation. It was determined that Mr Hewett was occupying the room as an employee of CCIG in accordance with his employment contract, rather than as a stranger. The Court therefore found that CCIG was vicariously liable for the incident. CCIG appealed this decision.

Decision of the High Court of Australia

The High Court set aside the Court of Appeal’s decision, finding that Mr Hewett’s conduct was so remote from his duty as to be altogether outside of, and unconnected with, his employment with CCIG. The Court distinguished Bugge stating that nothing in this case pointed to the relevant act being authorised or required by, or incidental to, Mr Hewett’s employment. By contrast, the preparing of the meal in Bugge was ‘intimately connected’ with the performance of the day’s task and was done in the course of employment. The Court found that Mr Hewett did not engage in the act at a time or place where CCIG could have been present to oversee his conduct.

The Court distinguished this case from those involving sexual abuse in institutions for example, where much may be explained by reference to the ‘special role’ assigned to the employee who was the abuser, and where employment features include authority, power, trust, control and the ability to achieve intimacy. It was found that there was no such ‘special role’ in this case and that at most, the accommodation requirement created a mere physical proximity between the employees. While this physical proximity provided the opportunity for Mr Hewett’s drunken actions to affect Mr Schokman, it was held that that physical proximity had an insufficient connection with Mr Hewett’s employment to establish vicarious liability.

Implications of the High Court's decision on duty of care

The High Court’s decision restores some balance between an employer’s duty of care to provide a safe workplace for their employees and an employee’s responsibility for their own conduct which is not authorised, required by or incidental to their employment. It is however, not a conclusive statement on what conduct arises within the course of an employee’s employment for the purposes of vicarious liability. Regard must still be had to the circumstances of each case.

Relevant to the issue of employers' liability for the conduct of their employees, is an increasing expectation on Australian employers to take active steps to protect workers' psychosocial health and safety. The Sex Discrimination Act 1984 (Cth) now also places a 'positive duty' on employers to eliminate, as far as possible, certain unlawful behaviours (including sex based and sexual harassment).

We will be watching to see whether or not any future judicial consideration of this new statutory duty is informed or influenced by the common law principles considered in Schokman, particularly in regard to what an employer is in fact able to do to minimise or eliminate the risk of harm to their employees arising from the conduct of a person or persons employed by the employer.


If you have any questions about the High Court's decision, or any of these new statutory duties (including what you and your organisations need to be doing now to comply), please get in touch with our team.

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