In July 2011 the Federal Court considered whether an employee
was entitled to workers compensation. She was injured in unusual
The worker was injured when she was having sex with an
acquaintance in a hotel that was booked and paid for by her
employer and was part of a work trip.
It appears that she was injured when a glass fitting above the
bed was pulled from its mount by either the worker or her
acquaintance and struck the worker on the nose and mouth.
The legal principles
For a worker to recover compensation it is necessary to show
that his or her injuries arose out of or in the course of
employment. This particular worker was employed by a federal
government institution. Her rights were determined under the
Safety Rehabilitation and Compensation Act.
She submitted a claim and liability was denied. She appealed to
the Administrative Appeals Tribunal. The Administrative Appeals
Tribunal reaffirmed the decision to deny her compensation. She has
appealed to the Federal Court and the court heard argument about
the claim in July.
Courts have for many years considered cases like these. Many of
the cases involve employees staying at remote locations or in
accommodation arranged and paid for by their employer.
The High Court reviewed many of the older cases in Hatzimanolis
-v- ANA Corporation Ltd1.
Hatzimanolis involved a worker from the Illawarra who was
working in Western Australia. His employer encouraged him and
others to spend his work-free Sunday at Wittenoon Gorge. The
employer organised the excursion, provided the vehicles and food
and invited Mr Hatzimanolis to come to come along.
He was injured on the journey (he sustained quite serious
injuries). The High Court held in those circumstances he was
entitled to compensation. The court determined that:
"It should now be accepted that 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
Following Hatzimanolis there have been a number of cases that
look at these issues. They include:
Inverell Shire Council -v-Lewis: a worker residing at a caravan
park in order to attend practical training was entitled to
compensation when he was shot and injured by a stranger.
McCurry -v- Lamb: a shearer was entitled to compensation who is
in the bed of a fellow employee when he was shot and seriously
injured by a deranged fellow employee.
Kennedy -v- Telstra Corporation: an employee who was injured
returning to a hotel was entitled to compensation.
Watson -v- Qantas Ltd: a Qantas pilot in Los Angeles was
injured returning to his hotel after visiting friends. It was held
that he was entitled to compensation.
The High Court has reserved its decision. The respondent has
submitted that the injured worker is not entitled to compensation
as the activity she was engaged in (sex) had not been authorised by
The Federal Court has reserved its decision and it is likely to
hand its decision down in the next few months.
We will comment further on the decision when the result is
1 1992 (173CLR473)
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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