A Whitsunday resort food & hospitality worker has been denied injury compensation for the conduct of his roommate in their shared employee accommodation unit because the likely harm from any alcohol related “unpleasant personal confrontation” there was held to be “minimal”.
Aaron Schokman was recruited by Daydream Island resort in October 2016 as food and beverage manager. It was a term of his employment contract that he be pay rent for furnished shared accommodation at $70 per week.
He notified the resort’s HR coordinator after being appointed to the position that the medication he needed to control a rare medical condition should be kept in a medical safe due to its very high cost and attractiveness to substance abusers.
On arrival, the 25-yr-old Schokman was assigned a studio accommodation unit containing two beds of which he was a sole occupant for the first 7 days until another new hospitality worker, Brad Hewitt was allocated the other bed.
He protested to the HR manager more than once about having to share accommodation with a hospitality worker subordinate he thought somewhat “odd” in his behaviour and requested to be relocated to other accommodation.
Just a week after starting work, Hewitt returned to the shared unit highly intoxicated while Schokman was in a deep sleep. He vomited in the bathroom and then passed out asleep.
About 30 minutes later Schokman woke in distress and unable to breathe because he was choking and inhaling Hewitt’s urine. He looked up and saw Hewitt standing over his bed – having mistaken the location of the nearby toilet – “with his shorts pulled down and his penis exposed while he was in the act of urinating”.
This brought on a severe attack of cataplexy – one of the conditions that he had notified to his employer that his medication was needed to prevent – triggered by the trauma that had woken him.
The medical consequences of the event were a permanent worsening of his cataplexy and narcolepsy and greater resistance to the expensive medication he needed to prevent their onset. He also sustained a chronic post-traumatic stress disorder.
The lawsuit against the employer alleged it was “an implied term of the accommodation agreement that the resort would take reasonable care to avoid exposing Schokman to an unnecessary risk of injury”.
In particular it was alleged that the resort ought to have developed policies to prevent unpleasant confrontations between occupants of shared accommodation and to control alcohol consumption.
Justice Graeme Crow agreed Daydream owed a duty to “design, establish, maintain and enforce a safe system… and a safe place of accommodation” and that such duty extended to consideration of the confined living quarters which employees were required to share for extended periods.
Turning to WCRA s 305B, His Honour found that notwithstanding the bizarre nature of the event – which likely occurred when the roommate was in an alcohol induced semi-conscious state – the risk of an “unpleasant personal interaction or confrontation” was foreseeable and in terms of s 305B(1)(b), “not insignificant”.
However Justice Crow found against the plaintiff on each of the three matters he was required to consider under 305B(2) in that, in his view, based on no evidence of prior similar events the probability of harm occurring from any such “unpleasant personal confrontation” was low; that any such harm if it occurred, would be “minimal”; and because there was no evidence of the precautions that ought to have been taken, he could not assess the “burden” on the resort in having to take them.
“The likelihood is that no harm would occur or minimal harm may occur in terms of a physical confrontation between roommates,” he wrote in the 45 page judgement.
Having decided that Daydream was not in breach of its duty of care, His Honour went on to rule that the breach of duty that Schokman alleged was not a cause of the resulting injury.
“There is nothing in the evidence to suggest that Hewitt, who was often critical of management would be more likely than not to abide any … alcohol policy,” Judge Crow concluded and therefore the plaintiff was unable to prove “that ‘but for’ such policy the urination event would not have occurred”.
His Honour also decided that Daydream did not “have any cause to treat Schokman differently from any other employee” by reason of his medical condition as he had told the HR manager the medication he needed to keep secured helped him to function “almost 100%”.
Neither was the court prepared to hold the employer liable for Hewitt’s tortious actions because “there is not a connection or nexus between the employment and the wrong committed that could justify the imposition of vicarious liability”.
One of the plaintiff’s experts swore that the appropriate standard of on-site accommodation in resorts and mining camps required separate bedrooms with individually locked doors. However the resort’s provision of sub-standard accommodation was not pleaded as part of Schokman’s case thus preventing the court considering whether it amounted to a breach of the duty it owed him.
Mr Schokman has since taken up an academic post “for which he is eminently suited and has performed at a high level”. Nevertheless His Honour assessed a future income loss of $500 net p/w at being one third of his current salary.
With $105k for past economic loss and $400k for the future 37 years’ income loss, the total assessment came in at $650k and this is the sum of the employer’s insurer would have to have paid for the hospitality worker’s injury, had the court accepted Daydream was liable for the resulting injuries.
This decision was reversed by the Court of Appeal on 18 March 2022 but on 2 August 2023, was reinstated by the High Court of Australia meaning that the original decision of Justice Crow dismissing Mr Schokman’s claim stands. The High Court considered that the actions of Mr Schokman’s roommate were so removed from his employment, that they were well beyond the reach of any vicarious liability that could be attributed to it.
Categories: hospitality worker injury