A Federal public servant injured while having sex on a work trip will receive a payout from the Government after the Federal Court ruled she sustained the injury in the course of her employment.
The judge compared the woman’s sexual activity to “playing cards in her motel room”.
The woman, referred to as “PVYW” in the case was in her late 30s and employed in the human relations section of a Commonwealth Government agency when the injuries occurred.
She was on a work trip to a country town in New South Wales where she had a male friend she had met three or four weeks earlier.
After the woman learnt that she would be visiting the country town, she made arrangements to meet up with the male friend and they went to a restaurant for dinner than returned to the woman’s motel to have sex.
While they were having sex, a glass light fitting located above the bed was pulled from its mount and fell on the woman, causing injuries to her nose and mouth which required hospital treatment.
The Administrative Appeals Tribunal found the woman’s injury occurred during an “interval or interlude” consisting of “the evening of the two days the applicant was away for work”.
It found the woman’s employer had expressly induced or encouraged her to spend the two days at the town, that it had programmed work for her on both days, and that it had booked the motel where she was to stay.
The tribunal initially found that the woman had to show that the sexual activity which led to the woman’s injury had been expressly or impliedly induced or encouraged by her employer.
It found the employer did not know or reasonably expect that the employee would engage in sexual activity at the motel and that, unlike showering, sleeping and eating, sexual activity was not an ordinary incident of an overnight stay in a motel room during a business trip.
On appeal, the Federal Court found the tribunal had erred and the woman did not have to show that her employer had induced or encouraged her to have sex.
“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,” said Judge John Nicholas.
“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.”
Harold Luntz, Emeritus Professor of Law at Melbourne University, told SmartCompany the case was “fairly routine” but just in unusual circumstances.
“The circumstances cause public amusement I suppose but it is not unusual to the normal run of cases involving employees away from their home base,” says Luntz.
“This applies a High Court case which found that where somebody was sent away from work by their employer anything the employer authorised while they were away would be covered during the course of their employment.”
“If she had slipped in the shower there would have been no public interest in the case today.”
Cara Waters is a former SmartCompany editor. Previously, Cara was a senior reporter for the Financial Times’ website and worked for The Sunday Times in London.
