This case takes "out-of-hours" conduct to a new level
In a recent decision, the Supreme Court of Queensland considered an employer’s potential liability for a bizarre out-of-hours incident. The plaintiff was employed as a restaurant supervisor at Daydream Island (“the defendant”). As a condition of his employment, the plaintiff shared accommodation with a roommate, who worked at the same restaurant.
The plaintiff was previously diagnosed with two disabilities – narcolepsy (a sleep disorder involving overwhelming daytime drowsiness and sudden attacks of sleep) and cataplexy (sudden and usually brief loss of voluntary muscle tone triggered by strong emotions).
After finishing their shifts one evening in November 2016, the plaintiff and his roommate visited the staff bar. The plaintiff returned to their shared accommodation at around 1am. He took his disability medication and went to bed. A short time later, the plaintiff awoke in complete distress and unable to breathe, to find his roommate urinating into the plaintiff’s mouth.
The plaintiff submitted that this accidental urination incident was due to his roommate’s “gross intoxication” and sleepwalking. However, the Court was not satisfied that there was sufficient evidence to show the plaintiff’s roommate experienced sleepwalking tendencies, rather finding that he was in a “state of semi-consciousness precipitated by his level of intoxication”.
The Court affirmed the plaintiff’s argument that the “relevant risk”, being that the plaintiff would have a “confrontation or unpleasant personal interaction” with his roommate, was foreseeable by the defendant. The plaintiff also stated that the defendant breached its duty of care by failing to appropriately instruct the plaintiff’s roommate regarding appropriate alcohol consumption and conduct within the accommodation.
The plaintiff further asserted that, had his roommate’s alcohol consumption been limited through the defendant’s enforcement of appropriate policies, the urination incident would likely have been avoided. The Court affirmed the argument that a reasonable employer would impose a code of conduct and an alcohol policy for staff living in shared accommodation. However, it found there was insufficient evidence as to what such policies should include. The Court also commented that it would be “notoriously difficult” to attempt to prohibit or limit alcohol consumption in such circumstances.
Finally, the Court found that it could not impose vicarious liability on the defendant, given there was “not a connection or nexus between the employment enterprise and the [roommate’s] wrong”. With this, although damages were assessed at $431,738.88 if liability had been made out, the Court ultimately found in favour of the defendant.
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