Ccig Investments Pty Ltd v Schokman

[2022] HCATrans 156

[2022] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B16 of 2022

B e t w e e n -

CCIG INVESTMENTS PTY LTD ABN 57 602 889 145

Applicant

and

AARON SHANE SCHOKMAN

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 SEPTEMBER 2022, AT 9.28 AM

Copyright in the High Court of Australia

KEANE J:   As the Court is sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR G.C. O’DRISCOLL for the applicant.  (instructed by Cooper Grace Ward)

MR G.W. DIEHM, KC appears with MR R.J. LYNCH for the respondent.  (instructed by Shine Lawyers)

KEANE J:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, in what might be called the unfinished business concerning vicarious liability in this Court’s decision in Prince Alfred College v ADC 258 CLR 134 at paragraph 41, the familiar phrase was used “a touchstone for liability” concerning the phrase “course or scope of employment” which was then developed in those reasons as being perhaps productive of more questions than answers.

In relation to that, the sufficiency of a connection so as to render it just to hold an employer not otherwise at fault liable was then discussed by reference to comparative jurisprudence, particularly in the United Kingdom and Canada, with which your Honours are familiar.  One thing which emerges, particularly from the observation by the plurality in Prince Alfred at paragraph 68, is that jumping straight to a mode of reasoning containing or perhaps simply announcing a conclusion under the banner of what is fair or just is, as the Court said:

capable of being misunderstood as an invitation to formulate policy rather than to search for principle”.

In our submission, this case provides an ideal opportunity for the Court to recommence a case‑by‑case teasing out of the facts of particular disputes what might be a principled approach rather than an intuitive announcement of conclusion.

EDELMAN J:   Mr Walker, does your first ground of appeal go anywhere?  Is it still pressed?

MR WALKER:   No, it is – I am afraid – perhaps more rhetorical than anything.

EDELMAN J:   Thank you.

MR WALKER:   However, apropos that, I should draw to attention in the application book page 69, paragraph [42], the culminating paragraph where his Honour draws the threads together – the manner in which an explanation is offered for the conclusion:

Whilst he remained employed at the resort, he was required to live there –

and the same would be true of not only other islands but also remote work locations which are very important to the economy of this country and have led to the notion of “Fly In, Fly Out”.

STEWARD J:   Mr Walker, can I ask you a question of detail?  It may not matter.  Was it a term of the employment that he reside in the accommodation or was it a term of his employment that he live on the island and that he was then offered accommodation – I think it is $70 per week?

MR WALKER:   It is probably the latter in the sense that the requirement to be accommodated would, as a matter of practicality, require accommodation to be available and the only accommodation available was that offered by the employer.  So, it may be six of one, half a dozen of the other, your Honour, in the sense that to be employed you had to stay at the island; to stay at the island, you had to have accommodation; to have accommodation, you have only the accommodation offered by the employer.  So, part and parcel ‑ ‑ ‑ 

STEWARD J:   It is agreed, is it, that there was no other alternative accommodation?

MR WALKER:   Yes.

STEWARD J:   Thank you.

EDELMAN J:  So, Mr Walker, can I just ask about how the case was run at trial?  As I understand it, there was no contention and there certainly is no contention now that any non-delegable duty or safe system of work obligation was violated?

MR WALKER:   That is right.

EDELMAN J:   In terms of the vicarious liability argument, the argument is put solely on the basis of attribution of liability rather than attribution of acts.

MR WALKER:   That is correct.

EDELMAN J:   So, there had to be a tort that was found by the employee and it was the attribution of that tort rather than particular acts?

MR WALKER:  Yes.  And, if I may say so, we wish to offer, as an important, if incremental, step in the working out of this difficult area, which is in danger, as we say, of otherwise declining into a simply intuitive conclusion. 

But the act, tortious by the employee, itself has to have a sufficient connection so as to render it, in the 18th century sense, just that the employer be held liable.  Where there is a remote camp, a worksite, a mining establishment, where there is an island resort, where there is itinerant work such as in aeroplanes, or buses or trucks, it may be assumed with any extended duration, not just of shifts, but of periods within which you are working shifts, that the performance of bodily functions, the concomitant need, say, for personal hygiene, will be necessarily part and parcel of the life that is the living, mode of living, of every employee.

The question is whether to misuse, as we would put it, the notion of opportunity or occasion; whether the fact that people are bunking together – accommodated together – means that everything out of hours – notwithstanding it has no connection in any purposive sense ‑ to the work for which you are paid will be as a result of the occasion and opportunity provided by the necessary bunking together, though connected as to render an employer liable.

If that be true, then in truth there will not be any limit, except by recourse to the most unsatisfactory and impossibly vague notion idiosyncratic in its particular application, case-by-case, of whether the outcome is fair.  And in our submission, the Court should take the opportunity to use this case, which is a useful bookend to cases such as Prince Alfred, which is of prime – to which employment provided a particular occasion and opportunity and intimacy and vulnerability.

This is quite a different case; it might be thought, one hopes, to be a far more frequent kind of case, the non-criminal negligence, but in a respect where nobody could fairly or sensibly attribute the acts in question to anything called for by the employment.

It simply is not sensible and imposes no jurisprudential limit to possible liability, to say that the employment called for the employees, out of hours, to go about their ordinary living and whatever recreation or other conduct, including sleep, that they need to engage in as human beings.  That is a reductive approach which does not have the hallmarks of legal principle.

EDELMAN J:   Mr Walker, at page 64 of the applicant book in paragraph [28], Justice McMurdo suggests that the primary judge was incorrect in applying the Canadian test from Bazley v Curry, which has been adopted in some of the English authorities.  Is the applicant’s position that there is such a sharp difference between that Canadian test and the Salmond formula which has been adopted in this Court and a number of occasions, or is it that the Canadian test is a test just at a higher level of generality?

MR WALKER:   I think the short answer is no, we do not assert what might be called radical divergence, let alone anything antithetical between what I will call the Canadian approach and what I would submit somewhat differently is the Australian approach.  But then, they are not the same, and, in our submission, partly that is because of different levels of generality, or generalisation more accurately, that attends the one or the other. 

What, in our submission, would be valuable for the common law generally, but certainly for the common law in this country, is for this Court in considering the usefully stark facts of this case, whether the acts of the tortfeasor employee need to bear such a relation to what is either required, authorised or, to use the jargon, as being an unauthorised mode of doing that which is authorised with respect to the duties of the employment. 

It is not a duty of the employment to carry out bodily functions.  It is not a duty of the employment, for example, in a related area, to attend to personal hygiene so as, for example, to prevent dangerous infections spreading to your flatmate.  Now, in our submission, that is why, as a matter of more mundane endeavour, the guidance found by a form of analogy by Justice McMurdo in Bugge v Brown was quite wrong.

EDELMAN J:   But, Mr Walker, it is not a duty of employment to cook food for lunch, though, is it?

MR WALKER:   Well, it was in that case.  He was in the field and they wanted to keep him in the field and for that purpose gave him the food which he could prepare in the field in order to carry out the work in the place and time that they wanted him to do so.  He had been, in fact, instructed as a work direction in Bugge v Brown how and where to cook, in other words, to deploy the dangerous notion of fire.  Now, in our submission, that is quite distinctly different from the bodily functions in this case which could not sensibly ever have been the subject of a direction as to “do it here” or “do not do it there”, et cetera, et cetera.

It is for those reasons, in our submission, that – and one can see this with respect to the passages from Sir Isaac Issacs in Bugge v Brown called in aid in the arguments in this case.  One can see that it is time for this Court to attempt, with more directness, plainness and clarity, to move from the general question – is it fair? – to those sub‑enquiries which may actually contribute by way of steps in reasoning rather than simply an announcement of conclusion.  We submit that this is a case in particular where examining the nature of the acts which were tortious by the employee and the connection, which may be indirect – it may, of course, exhibit an excess of authority on the part of the employee – with that for which the employee is employed.

Now, the criticisms by this Court – the plurality in this Court, for example – of possibly the outcome but certainly the reasoning in Mohammed are well‑known but, in our submission, leave the matter hanging so far as what is ‑ ‑ ‑ 

STEWARD J:   Can I ask you a question, Mr Walker?  I am sorry to interrupt.  If fairness is not the test, and you need a connection which is sufficient, what, as a matter of principle, will you be putting to the Court if leave were to be granted?  What would be the test for determining when the connection is sufficient so as to justify a finding of vicarious liability?  What is the content of your test?

MR WALKER:   That the act must bear a sensible relation to the activities for which the employee is employed, albeit it may bear that relation by constituting an unauthorised way – or even a forbidden way – of doing that for which the employee is retained.  That is one way to express the test.  It is not appropriate in this case, given the findings or the lack of findings, to seek to extend that to the cases where sexual abuse of children, in particular, and other vulnerable people, were the subject of consideration in this Court in Prince Alfred College, involving the special quality of vicarious liability for criminal conduct.  This is not that case.

There are common elements to what I have suggested would be the useful outcome were this Court to take this case and were we to succeed – namely, that there would be a sensible relation required for cases of non‑criminal conduct – a tort, here, of negligence – where nothing in the conduct in question can be attributed to any of the aspects of the employment, unless of course – and this would be our argument against our friends were an appeal to be argued – unless of course the extraordinary steps were taken of saying that wherever there is remote work or itinerant work so that accommodation either on‑site or in‑plant is part and parcel of what is required in order to be employed, then all and everything you do as an employee, during your off‑hours – where you are recreating, eating, performing bodily functions – are sufficiently connected so as to render your employer liable.  In our submission, that is such an extraordinarily broad exposure as intuitively to attract the epithet of “unfair”, not just.

STEWARD J:   Can I ask, do I take that what informs your test of what is sensible or appropriate is really about working out the parameters of that which used to be called the scope of employment?

MR WALKER:   Yes.  So, we do not propose, with great respect, that the Court should abandon the notion of touchstone but – staying with that figure of speech for a moment – perhaps making the results of applying the touchstone a little more straightforward to observe.

What is it about the act in relation to scope or course of employment that ought to be sufficient according to this Court for the common law of Australia so as to render a non‑wrongdoing employer liable for the tort to his employee?  In our submission, what was lacking in the court below – what is certainly lacking in some of the analyses critically evaluated by this Court in Prince Alfred – is an appropriate focus on the particular act constituting the tortious conduct by the employee and the relation it bears to that which is within the scope or course of employment.

It raises the particular and socially significant question of is there to be a special case, and if so why, for those employments where accommodation and conduct out of hours in your free time, not supervised, should – because of the remoteness and the requirement of accommodation onsite, so to speak – be a means by which every such employer is liable come what may for the torts and, it would appear in many cases also, crimes of employees as they may affect co‑employees.

It is for those reasons, in our submission, your Honours, this is an ideal case for the grant of special leave in a difficult area which is in need of some doctrinal advancement.  If it please the Court.

KEANE J:   Thanks, Mr Walker.  Yes, Mr Diehm.

MR DIEHM:   Thank you, your Honours.  Your Honours, with respect, our learned friend’s argument starts, in our submission, from a false premise.  It is captured in paragraph 4 of the reply submissions of the applicant, and that is to say that the respondent’s case – and for that matter more importantly perhaps, it must be extrapolated that the judgment of the court below – depends entirely upon the requisite connection with employment only being the course of the provision of accommodation.

It is our submission that what was involved in the judgment in the respondent’s favour by Justice McMurdo goes much beyond that and we adopt what was considered by Mr Walker a few moments ago in response to a question from Justice Steward, that, of course, here it was not just a question of provision of accommodation but a requirement as a matter of practicality as well as a contractual requirement to use the particular accommodation that the employer provided.

EDELMAN J:   Mr Diehm, would that mean, on your submission, that each and every tort committed on the island, or in the accommodation on the island, would be a tort for which an employer was responsible no matter when it was committed and no matter what relation it had to employment?

MR DIEHM:   No, your Honour.

EDELMAN J:   Could you give me an example of something which – if urinating on someone in the middle of the night is sufficiently connected – of a tort that would not be sufficiently connected?

MR DIEHM:   One might suppose that if there was deliberate conduct engaged in out of some personal ill motive, then that would not be a tort that would be connected with the employment in a relevant way.  There may be some activity that does not involve an intentional tort that is so far removed from anything that might be reasonably expected to be incidental to the employee being where they are at the time that it would not be thought to have the requisite connection with the employment.

The contrast is really between the Bugge v Brown‑type situation as your Honour observed to Mr Walker during the course of the applicant’s argument that, plainly enough, the employee there was not employed to cook a meal.  He was not there employed to start fires.  His job on the day was to deal with thistles, but it was necessarily incidental to the tasks that he was required to perform, the duties and obligations that he had to his employer, that there would come a time when he needed to eat.  And to be able to eat, as the judgment explains, you would need to cook meat and therefore start a fire.  It was only in that sense that what was being done there was incidental to the employment in a way that meant that there was vicarious liability when the fire escaped.  And the same here; the employee here is required to be in that accommodation for the purposes of his employment.  It was inevitable that, at some point in time, he would need to use the toilet just as the employee in Bugge was going to need to eat.  And so, it contrasts ‑ ‑ ‑

STEWARD J:   Mr Diehm, can I ask you, did the contract of employment here impose any more general obligations to maintain a professional demeanour or good conduct or something like that whilst on the island?

MR DIEHM:   There was in particular a clause – I hope I am answering your Honour’s question – referred to by Justice McMurdo in paragraph [42] of the judgment as well as elsewhere that provided that the employee was required:

to take reasonable care that his acts did not adversely affect the health and safety of other persons. 

And his Honour said that:

That was an obligation which governed his occupation of this room.

There was also another cause that provided that the employment could be terminated in the event – and this is a paraphrase, but in the event that the employee engaged in some conduct that brought the employer into disrepute.

STEWARD J:   Thank you.

EDELMAN J:   Would that type of argument, Mr Diehm, apply squarely in a case like Lister v Hesley Hall which is discussed in the Royal Prince Alfred Case in relation to teachers who have an obligation of care for their students who then abuse the students?

MR DIEHM:   Is your Honour speaking of the matters I have just answered Justice Steward about?

EDELMAN J:   Yes.  The same type of reasoning could be applied to say, well, doing the very thing which is the antithesis of your obligation, which is to have the care of students, is something which is sufficiently within the scope of your employment, just as one could say, well, urinating on someone, which is the very antithesis of an obligation to behave in a manner which is an appropriate standard of behaviour, could also be said to be within the scope of employment, on that type of reasoning.

MR DIEHM:   That may be so.  We do not need to go that far in the argument that we advance, though, in the sense that the relevance, in our submission, with respect to the term – in particular, the one identified by Justice McMurdo in paragraph [42] about taking reasonable care for the health and safety of others including the respondent – is that it shows that the employer was by its contract regulating the behaviour of this employee, Hewitt, whilst he was engaged in the activity of sharing a room with the respondent, so that it goes to the connection with the employment.  A path that this judgment has proceeded upon is to identify that, together with the requirement to share the room in the first place, but also the factors that were identified or can be identified out of the judgment in Bugge v Brown as being sufficient in the case here of a negligent act on the part of the fellow employee as to found vicarious liability.

It is in that respect we point to the matters from Bugge v Brown that are in common here as to why – and his Honour said that the case was analogous, that it really means – and his Honour would be taken to have meant that it is materially indistinguishable.  In both cases the employees were on breaks from their duties, albeit in the case of Bugge it was a luncheon break rather than a break between shifts.  Both of them were on the employer’s premises and in both cases it was necessary, and indeed required, for them to be on their employer’s premises.  The employer had provided relevant facilities to each of them that were connected with the tort that was committed.  In the case in Bugge it was food as well as provision for fire and in our case it was sleeping quarters that included a toilet.

We pause there to note, having regard to the submissions made by Mr Walker this morning, as he rightly pointed out that in Bugge there was an express instruction by the employer as to where the fire was to be lit and by implication where it was not to be lit, and it seems to be submitted, as we have understood it, that that is a distinguishing feature here.  In our respectful submission, it is not one of any materiality.  It can hardly be said that where the employer provides the quarters that it requires the employer to live in, and that it includes in those quarters a bathroom with a toilet in it, that there is an implicit instruction that there is where one is to go when needing to urinate, rather than anywhere else in the quarters.  So the distinction between the express instruction, the circumstances here is one that is of no materiality.

EDELMAN J:   It does seem, though, Mr Diehm, the way you are putting the submission that it is much more akin to a duty to provide that a safe system of work exists, and to ensure that reasonable care is taken within that safe system of work.  That is a non‑delegable duty; it is not vicarious liability.

MR DIEHM:   That is not, with respect, the case that we are meant to be putting, your Honour, if that is the way it is being seen.  This is a case, as was found by the trial judge and, in turn, the Court of Appeal where there was a tort committed by Hewitt.  He was negligent.  The assigning of liability to the employer did not depend upon any failing on its part to ensure that reasonable care was taken, but rather simply was because, in the words of Justice McMurdo, the tort was committed in circumstances where the employee was not acting as a stranger to the employer, because of a sufficient connection with the duties that the employer employed Hewitt for.

To make that good, it is, in our submission, plain that neither employee was employed to perform the respective task.  It was not, in the words of Justice Issacs, the main purpose, but rather it was a subsidiary purpose because it was something that it was inevitable had to be done by a human being employed to perform the main purpose that the person was employed to do. 

To go back to a question you asked earlier, Justice Edelman, about the distinction between torts committed in this break that might attract liability or not, that is a general description of where that falls; that is to say, those things which it is obvious or unavoidable that will arise in the course of a person’s engagement with the employer, even though they are not the tasks that the person was employed to perform.

We identify as an example of something that might occur that, on the sort of formulation that our learned friends are proposing, may well not be captured:  supposing that the incident that afflicts the injury upon the plaintiff is something where there is work that is performed in a factory and, like all workplaces – or virtually all workplaces – an employer provides bathroom facilities for their employees to use, and the factory worker – plaintiff – leaves the factory floor to go to the bathroom and slips on some soap that has been carelessly left to fall upon the floor from near the wash basins when entering the bathroom. 

Plainly enough, the employee – the offending employee washing their hands after going to the bathroom and making a mess on the floor – was not engaged in any task that had anything to do with the actual tasks that they were performed to employ.  But, nevertheless, going to the bathroom was something that was inevitable to happen at some time during the course of a shift, and if the employee was careless, negligent, by failing to take reasonable care in their manner of the use of the washbasins – leaving the soap – then the employee who slips and injures themselves should, in accordance with the law as it is well established, in our submission, be able to show vicarious liability on the part of the employer for the negligence of that employee. 

STEWARD J:   Mr Diehm, can I ask you a question?  The rent was $70 per week.  Do I take it that it follows from that that both the employees had exclusive possession of the room and the toilet? 

MR DIEHM:   That would be so, yes.

STEWARD J:   So, for all intents and purposes it was, on one view, similar to them hiring a flat owned by a third party on the island?

MR DIEHM:   Save that ‑ ‑ ‑ 

STEWARD J:   Because they are domestic spaces, in other words.  Is that something that could be put properly?

MR DIEHM:   It is difficult to say because there was, as the trial judge noted in appeal book 7, at paragraph [9] – his Honour noted that the contract had:

provided for the entering into of a tenancy agreement, however that agreement was not placed in evidence.  The contract of employment also makes –

I am sorry; I pause there.  So, there was said to be a tenancy agreement according to the contract of employment, but it was not in evidence. The full matters that your Honour is referring to probably cannot be explored here.

STEWARD J:   All right, thank you. 

MR DIEHM:   In our submission, your Honours, for the reasons that we have identified – that is to say the plain connection with the employment in the sense that there was a requirement to occupy these premises, the conduct of the employee was regulated whilst doing so, and indeed presumably for the employer’s own interest, there was a direction by the contract that reasonable care was to be taken to avoid . . . . . to the person in this circumstance of the respondent himself, and that the facts of the case are really materially indistinguishable from those that were relied upon in Bugge v Brown for the Court there to reach the conclusion that the employee was not acting as a stranger, were all well made good, and in accordance with all of the authorities – including those since Bugge v Brown – do not show error with respect to the reasoning of the Court of Appeal.

With respect to the identification of the test that Mr Walker referred to in response to questions from the Bench this morning, we draw your Honours’ attention to paragraph [40] of the judgement – and indeed the passage that appears on page 69 of the book – and it is the last part of the quote from the judgment of Justice Isaacs where his Honour said that:

The act of the servant complained of is regarded as outside the relation, and as that of a stranger –

and two instances are given in (a) and (b).  It is our submission that this case plainly fell within what his Honour said there in subparagraph (b), that is:

if what he did was a thing so remote from his duty as to be altogether outside of, and unconnected with, his employment –

The employee going to the bathroom here – just like any other employee going to the bathroom during the course of their work – is not an employee

who is acting so far removed from their employment – they were doing something that was inevitably incidental to the work that they are employed to do as a human being.

In our submission, the special leave question posed at paragraph 8 of the application is ill‑conceived because it identifies a remoteness from the employment activities that is not made out by the judgment and the findings that were made therein.  It is further submitted that this argument was one that was not really advanced at the trial – as was identified by Justice McMurdo in the reasons below.

The submissions that were advanced on behalf of the applicant at trial referred only to the question of it being not in the course of employment to support a submission that the plaintiff had failed to make out – the respondent had failed to make out a breach of duty or causation.  The submission was not developed any further than that bare statement and its relationship to those two elements of the cause of action is not really capable of comprehension, with respect, in our submission.

EDELMAN J:   But, Mr Diehm, that is just a question of law though, is it not?  There is no suggestion that the trial would have been run any differently.

MR DIEHM:   No, I accept that, your Honour.  Those are our submissions.  Thank you, your Honours.

KEANE J:   Thanks, Mr Diehm.  Mr Walker, anything in reply?

MR WALKER:   Yes, may it please your Honours.  It is on page 69, going back to the quote from Sir Isaac Isaacs, in paragraph [40] compared with the way in which Justice McMurdo disposed of the matter in paragraph [42] that we submit the point arises for which we urge a grant of special leave, that is, the need to focus on the relation of the Act tortious by the employee as having or not having a sufficient connection so as to render it just to hold the employer liable.  The language adopted by Sir Isaacs includes:

“the course of the employment” or “the sphere of the employment” – is when the servant so acts as to be in effect a stranger in relation to his employer –

Now, that is a forceful way not of describing somebody who ceases to be an employee – far from it – the premise is that they are an employee, it is to focus upon the act, whereas in paragraph [42] that same figure of speech of being “a stranger” is extended, we submit, wrongly by his Honour to “not occupying the room as a stranger”.  But it is the urination on his roommate, that is the act about which the question should be asked and it is neither counterintuitive nor unreasonable, surely, for there to be an argument mounted that in urinating on your roommate you are so acting as to be, in effect, a stranger in relation to employer.

Now, while talking about toilet facilities, as this case necessarily involves, we submit, which are simply an aspect of the infrastructure, recognising that we have bodily functions and that when accommodation is occupied, there will need to be facilities for that purpose.  Our learned friend’s argument by some kind of comparison or parallel concerning facilities usually required by law to be provided in factories and other business premises of a particular size with a particular number of personnel, that goes absolutely nowhere.  It is not suggested for a moment that it is by dint of being the owner or head lessee of these accommodations that there is any element of connection supplied to make out vicarious liability by our client.  There is no useful analogy there at all.

With respect to the tenancy and the matters that Justice Steward was asking my friend, it is clear from the way in which the Court of Appeal proceeded at application book 64, paragraph [31], that it is possession that was granted by the tenancy agreement, because possession was to be given back at the vacating.  So, yes, there is an estate; yes, it appears to be exclusive possession.

The notion, finally, that this is a case that supplies connection because of there being in effect an implicit instruction to use the toilet facilities rather than to urinate on the companion in the bed is, in our submission, a most ponderous and artificial construction of the events.  It cannot be the case that, as it were, the employer implicitly instructs people to behave decently in all aspects of their life including outside work hours.  Indeed, the question of the contractual duty to act so as not to put the employer into disrepute, et cetera, to look after the health and safety of workmates, et cetera, really goes nowhere in this case.  It does not add anything whatever to the existing duty of care as a matter of common law owed by people who are literally in their accommodation, neighbours, and it was that common law negligence which of course is the tort for which we were wrongly held vicariously liable.  The contract really goes nowhere to supply the requisite connection.

Finally, the matter that Justice Edelman raised with my learned friend whether connection might usefully be understood as incorporating in cases of unauthorised modes, the notion of antithesis, the classic example being you are employed as a warden to look after children, it is the antithesis of that to sexually abuse them, and we accept that the cases provide powerful justifications for even such horrible crimes rendering an employer vicariously liable.

EDELMAN J:   It may be, Mr Walker, that the justification does not provide vicarious liability there, but it may be that justification, as Justice McHugh has said, is for finding a non-delegable duty of care.

MR WALKER:   I entirely accept that, your Honour, that is not this case.  As to the antithesis, it is not sensibly proposed here.  What was the aspect of the work for which the plaintiff was employed, the antithesis of which was urinating on his companion.  And it is for those reasons, in our submission, that that interesting possibility not being discussed or used in the reasons for the Court of Appeal, in fact, adds force to the merits of this case for grant of special leave.  Please the Court.

KEANE J:   The Court will adjourn briefly to consider the course it will take in this matter. Adjourn the Court please.

AT 10:12 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.15 AM

KEANE J:   There will be a grant of special leave in this case.  Mr Walker, your grounds of appeal need some attention, firstly, to recognise your concession by removing ground 1, and grounds 2 and 3 do not really articulate the positive argument that you seek to run.

MR WALKER:   Yes.

KEANE J:   We do not propose to stand on the reformulation but, obviously, you will reformulate your ground of appeal to reflect the submissions you made this morning.

MR WALKER:   Yes, your Honour.

KEANE J:   Mr Walker, how long will the case take to hear?

MR WALKER:   It will finish within a day, your Honour.

KEANE J:   Mr Diehm?  What do you say?

MR DIEHM:   I agree, your Honour.

KEANE J:   Very well then.  Special leave is granted.  Adjourn the court until 10.30 am, please.

AT 10.17 AM THE MATTER WAS CONCLUDED