Where does work finish and sex begin? This question will be argued in the High Court because of an injury compensation claim against her Government employer, brought by a public servant injured during a sex act while on a job out of town.
Brisbane compensation lawyer Mark O’Connor says the case is unlikely to open the floodgates to similar claims but he expects the Court to answer a vexed question for employers- what is their liability if staff are injured while on assignment out of town?
The federal government's workplace injury insurer , Comcare, has been granted leave to seek a High Court ruling whether an injury suffered by an employee on a business trip while having sex in her hotel room arose ‘in the course of her employment’.
The case relates to an incident in 2007 when a woman was sent out of town for work reasons. While there she and a male friend returned to her motel room after work and had sex, during which a glass light fitting above the bed was pulled off its mount and fell onto her face, injuring her. She lodged a compensation claim but it was refused. She took the case to the Federal Court.
Mr O’Connor, a Director of Brisbane law firm Bennett and Philp Lawyers, said the issue had drawn national attention because the Federal Court had found in the woman’s favour last year, effectively stating the woman’s injuries could be classed as incurred while she was engaged in the course of her employment.
Comcare appealed unsuccessfully last December but has now won the right to take the matter to the High Court.
Mr O’Connor said the wider issue was where does an activity cease to be employment related when on a business trip?
The headlines in this issue were because the injury occurred during sex, but if the injury had happened having a fall in the hotel bathroom, would the initial compensation claim have been denied?
He said the claim was the first time he had heard of an employee on a work trip, holding her employer liable for injuries sustained while having sex during a work trip away.
“The Federal Court view seemed to be that if you are assigned to work away from home, then your workers compensation cover should include the routine and normal aspects of life. Sexual activity would be considered part of that.
“I am surprised it’s going to the High Court though but I’m sure employers will be looking closely at the findings as the decision could have implications for employers sending staff on out of town assignments.
“In effect it means if you are on a business trip and are injured during a lawful activity, then you are covered,” he said.
“It’s no different from slipping in the shower or falling down the stairs. The Court is saying a “life incident” is covered and sex is a normal part of life.
“Some employers might argue they should not be held liable for injuries due to sex sessions in out of town motels outside working hours, but the legal principles being upheld here are very clear,” Mr O’Connor said.
“Someone sent out of town for work reasons can claim WorkCover benefits if they are injured while away. In this case the government insurer denied a claim because it believed an injury during sex could not be justified as work- related. Everyone is watching the High Court for its decision,” he said.