Worker’s out-of-town sex injury compensable: Judge

Author: Harrison HR | Blog

The injuries sustained by a worker while having sex on a work trip were found to be compensable by the Federal Court, which determined that the employer was liable, even though it had not ‘expressly induced or encouraged’ the activity that led to the accident.
In November 2007, a public servant was sent on an overnight trip to a country town in New South Wales to lend her human resources expertise to a regional branch of the Commonwealth Government.
During this time, the worker arranged to catch up with a male friend, whom she’d met in town three or four weeks beforehand.
Following a dinner date, they retired to a motel room, booked by the worker’s employer, and engaged in sex.
While doing so, a glass light fitting located above the bed was pulled from its mount and fell on the worker, causing injuries to her nose and mouth, as well as sequela psychological condition.
When her compensation claim was rejected, the worker appealed to the Administrative Appeals Tribunal.

Conduct not expressly induced: Tribunal

During legal proceedings, the worker argued that her injuries were compensable because they were sustained during an interval or interlude within an overall period of work, which she spent at a particular location (the motel) at the ‘express or implied instigation and organisation’ of her employer.
Although the Tribunal did not suggest that the injuries were either intentionally self-inflicted or caused by gross misconduct, it determined that the activity that led to her injuries was not sufficiently connected with her employment to constitute an activity undertaken in the course of her employment.

‘Having sex the same as playing cards’: FCA

The worker then appealed to the Federal Court of Australia, where Justice Nicholas found that the Tribunal had erred in holding that for the worker to succeed, she had needed to show that the particular activity which led to her injury was one that had been expressly or impliedly induced or encouraged by her employer.
‘If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity,’ Justice Nicholas said.
‘In the absence of any misconduct, or an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result.’
Setting aside the Tribunal’s orders, Justice Nicholas declared that the injuries sustained by the worker were suffered by her in the course of employment, and therefore compensable.

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