30 October 2013
Sex injury,
not work-related!
Comcare v PVYW [2013] HCA 41 (30 October 2013)
The High Court has this week issued a decision which has caused employers to breathe a
collective sigh of relief that common sense has finally prevailed.
On 30 October 2013 the High Court, by majority, held that Comcare was not liable to
pay compensation to a Commonwealth employee who, whilst staying overnight on a work
related trip to a regional town, suffered injuries whilst engaging in sexual intercourse in the
motel room her employer had booked for her.
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The employee had been required by her employer to work for two consecutive days in
a regional town away from her ordinary place of residence. She stayed overnight at a
local motel which had been booked by her employer. Whilst at the motel, the employee
engaged in sexual intercourse with an acquaintance. In that process, a glass light fitting
above the bed was pulled from its mount and struck the employee on her nose and mouth,
causing her physical injuries and a subsequent psychological injury. The employee sought
compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988
(Cth) (“the SRC Act”). She argued that her injuries were suffered “in the course of” her
employment and that she was, therefore, entitled to compensation.
The Administrative Appeals Tribunal (“the AAT”) held that the employee’s injuries were
unrelated to her employment. On appeal, the Federal Court of Australia set aside the
Tribunal’s decision. The Federal Court’s decision was then upheld by the Full Court of
the Federal Court. The Full Court held that the employee’s injuries occurred in an “interval
or interlude” during an overall period of work and, therefore, arose in the course of her
employment. The Full Court found that an interval or interlude existed because her employer
had induced or encouraged her to spend the night at a particular place, i.e. at the motel. It
was not necessary to show that her employer had induced or encouraged her to engage in
the particular activity in which she was engaged when her injuries were suffered. By special
leave, Comcare appealed to the High Court.
Amber Chandler
Partner
T: (02) 8644 9522
E: amc@kadenboriss.com.au
The High Court allowed Comcare’s appeal. The High Court had the opportunity to
reconsider the central test from Hatzimanolis v ANI Corp Ltd [1992] HCA 21:
“… an interval or interlude within an overall period or episode of work occurs within
the course of employment if, expressly or impliedly, the employer has induced or
encouraged the employee to spend that interval or interlude at a particular place or in
a particular way. Furthermore, an injury sustained in such an interval will be within the
course of employment if it occurred at that place or while the employee was engaged
in that activity unless the employee was guilty of gross misconduct taking him or her
outside the course of employment.”
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Vivian Haddad
Associate, Kaden Boriss
T: (02) 8644 9528
E: vah@kadenboriss.com.au
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30 October 2013
A majority of the High Court held that in order for an injury to be sustained in
an “interval” or “interlude” during an overall period of work to be in the course
of an employee’s employment, the circumstances in which the employee was
injured must be connected to an “inducement or encouragement” by the employer.
If the employee is injured whilst engaged in an activity at a certain place, that
connection does not exist merely because of an inducement or encouragement to
be at that place.
When the circumstances of an injury involve the employee engaging in an activity at the
time of the injury, the relevant question is: did the employer induce or encourage the
employee to engage in that activity? Thankfully, on the facts of this case, the majority
held that the answer to that question was ‘no’.
Although this case relates to a Federal workers compensation claim, as a High Court
decision it has application across all state compensation schemes in relation to the
interpretation of “in the course of employment” for interval/interlude claims.
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