Injury During Sex Not Work Related - Really?

31st October 2013

Depending upon your perspective, the decision of the High Court of Australia (Comcare v PVYW [2013] HCA 41) yesterday to overturn an award of workers compensation to an employee for injuries sustained during a sexual encounter, may be good or bad news.

You may recall that the Federal Court of Australia had decided that injuries sustained by a Commonwealth public servant whilst away on business, were work related and therefore entitling her to compensation. The Commonwealth agency employer had sent the employee to work for two days in a regional town away from her ordinary place of residence. She therefore stayed overnight at the local motel which the employer had booked for her. During sexual intercourse with an acquaintance at the motel after work hours, a glass light fitting above the bed was pulled from its mount and struck her on the nose and mouth, causing her physical injuries and a subsequent psychological injury.

The employee claimed compensation against Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). She argued that her injuries were suffered “in the course of her employment” and that she was, therefore, entitled to compensation.

However, the High Court overturned the decision saying that employer’s liability in such circumstances depends upon what the employer induced or encouraged the employee to do between actual periods of work. For an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs. The High Court further noted that nothing in the law supports the notion that the employer is liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has merely required the employee to be present at the place where the activity is undertaken.

A pretty sensible decision. Unfortunately, the employer had to go all the way to the High Court to obtain it.