Was employer liable for behaviour of claimant's co-worker?
An employer found itself in hot water after one of its employees sued it before the High Court because a co-worker urinated on his face, worsening his medical condition. The act was done in a shared accommodation that the employer provided as part of its terms. The worker claims that the co-worker’s negligent act is connected with his employment and wants the employer to be held “vicariously liable.”
In its defence, the employer said the act of urination was not “in the course of his employment in the relevant sense.” The High Court is now set to hear the case; will the employer’s argument go down the drain or will it prevail?
Vicarious liability means that one party can be held liable for the conduct of another. This liability covers the relationship between an employer and an employee. Case law has long laid down the precedent that an employer can be held liable for negligent acts or omissions committed by an employee “in the course of employment,” regardless of whether the conduct was authorised or not.
In the early hours of 7 November 2016, an employee referred to by the court as “AS” was asleep at a staff accommodation at his employer’s premises. He shared those quarters with another employee, “SH.” About half an hour earlier, AS had heard SH vomiting in the bathroom, allegedly from drinking alcohol.
According to court records, AS went back to sleep before waking with “a distressing sensation” of being unable to breathe. He then realised that SH was standing over him and urinating on his face. He then yelled at him to stop, and after a short while, SH went to the bathroom, from which he soon emerged to apologise.
Almost immediately after the incident, AS suffered a cataplectic attack. He had been previously diagnosed as suffering from a medical condition called “cataplexy,” a sudden and usually brief loss of voluntary muscle tone triggered by strong emotions. He had also been diagnosed with narcolepsy, a sleep disorder characterised by daytime drowsiness and sudden attacks of sleep.
At the trial, the judge concluded that although his conditions of narcolepsy and cataplexy were “pre-existing,” they were ruled to be “essentially dormant and kept under control by medication and planning.”
The court declared that as a result of the incident, the worker’s medical conditions “were exacerbated.” He was also found to have suffered post-traumatic stress disorder due to the incident.
AS sued his employer, claiming damages on two bases. His first argument at the trial was that the employer breached the duty of care owed to him as its employee. His alternative argument was that SH had committed a “tort” for which the employer was vicariously liable.
The trial judge rejected the worker’s argument and favoured the employer. On the vicarious liability ground, the judge found that SH’s act was “tortious” but concluded that the employer was “not vicariously liable because the tort was not committed in the course of [SH’s] employment.”
On appeal, AS challenged how the trial judge struck the vicarious liability argument. In its decision, the Court of Appeal favoured the worker, ruling that “it was a term of [SH’s] employment that he [should] reside in the staff accommodation, and more particularly in the room assigned to him.”
“[While] he remained employed, he was required to live there, and once he ceased to be employed at the resort, he was required to leave,” the Court of Appeals said.
“The terms of his employment required him to take reasonable care that his acts did not adversely affect the health and safety of other persons. That was an obligation which governed his occupation of this room. He was not occupying the room as a stranger, but instead as an employee, pursuant to and under the obligations of his employment contract,” the Court of Appeals added.
Now, the High Court deals with the issues of whether there is a “requisite connection” between the employee’s actions that brought injury to another, and the employment contract. It is also expected to rule on a “proper approach” in determining the “scope of vicarious liability” for employers facing similar circumstances.
As of date, the High Court has yet to receive the submissions of both parties, which are expected to be given this November.
