A recent High Court case clarified the question regarding an employer’s vicarious liability for the conduct of its employees.
A Queensland employee sued his employer for his colleague’s negligent urination on him while he was sleeping in a shared accommodation arranged by the employer. The initial decision by the Supreme Court of Queensland found that the employer was not liable for the colleague’s negligent urination. However, on appeal, the Queensland Court of Appeal ruled that the employer was vicariously liable for the colleague’s wrongful act.
The employee worked at a resort and was required under his employment contract to live on the island. His employer arranged shared accommodation for him and his colleague. The employee awoke one morning to his flatmate/colleague, urinating into his mouth. The colleague was heavily intoxicated. The employee suffered a cataplectic attack, PTSD and developed an adjustment disorder as a result of the incident. The employee sued his employer for breaching his duty of care and vicarious liability for the urination action of his colleague.
The issue of whether the employer is vicariously liable was ultimately clarified by a further decision of the High Court, which found that the colleague’s negligent actions were not closely connected with any of the duties of his employment. He couldn’t have been viewed to be acting in the course or scope of his employment. Therefore, the employer could not be held vicariously liable for his actions.
What is Vicarious liability?
Vicarious liability is the responsibility an employer has for their workers’ wrongful actions that are committed within the scope of their employment. It often arises in situations where an employee is harassed or discriminated against by another employee of the business in the course of their work, a complaint can be lodged against the employer as well as the individual employee/perpetrator.
Although this High Court decision provides an example of what may not be considered in the scope of employment, particularly in situations where an employee is on remote work or is provided accommodation, employers should be reminded themselves of their statutory obligations, such as providing a safe workplace.
Employers still have a primary duty to provide a safe workplace for the employees and others under the Work Health and Safety laws. Employers also have a positive duty to eliminate, as far as possible, conduct that creates a hostile work environment.
If you have any questions or need assistance in relation to vicarious liability and work health and safety duties, please contact our Workplace Relations and Legal Team on 02 6175 5900.