The Federal Court of Australia has overturned a decision of the
Administrative Appeals Tribunal (AAT) and ruled that the injuries
suffered by an employee of a Commonwealth Government Agency whilst
having sex on a business trip were sustained within the course of
The employee was employed in the HR section of a Commonwealth
Government Agency when she was required to travel to a country town
in NSW to observe the budgeting process undertaken by her colleague
ad meet local staff.
The employee, after being informed of the business trip, made
plans to meet a male companion who lived in the country town. They
met one evening, went out for dinner and back to the
employee's motel room where they had sex.
The employee was injured whilst having sex on the bed - the
injury occurred when a glass light fitting was pulled from its
mount above the bed. The employee received hospital treatment for
injuries to her nose and mouth.
The AAT considered the applicable legislation, the Safety
Rehabilitation and Compensation Act 1988 (Cth) (the Act) and
found against the employee, stating 'the activity in which the
applicant was engaged was not associated with [her] employment and
second, that it was not engaged in at the direction or request of
The Act relevantly provides that an 'injury, needs to have
arisen out of, or in the course of employment.' It also
provides that an injury may be treated as arising within these
circumstances if 'it was sustained while the employee was
temporarily absent from the employee's place of work
undertaking an activity associated with the employee's
employment or at the direction or request of the
Federal Court decision
The Federal Court of Australia found that the AAT erred in its
decision. The error was that it required as necessary, the employee
to show, in order to be successful, that 'the particular injury
which led to her injury was one that had been expressly or
impliedly induced or encouraged by her employer.'
The Court was of the view that the underlying question that the
AAT needed to determine was 'whether there was a sufficient
connection or nexus between the injuries suffered by the employee
and her employment.' The Court concluded that the
'sufficient nexus' test was satisfied on the basis that
the employee suffered her injuries while she was in the motel room
in which the employer encouraged her to stay.
The Court also said that 'the fact that the employee was
engaged in [lawful] sexual activity rather than some other lawful
recreational activity while in her motel room does not lead to any
It is clear from this decision that the Courts are willing to
adopt a broad view as to what activities undertaken by employees
will fall within the ambit of the test known as 'in the course
of employment' provided the conduct of the employee is not
of a kind that is unlawful or of such a nature as to constitute
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