Many eyebrows were raised when a court recently ruled that a
woman injured during a sexual tryst in her hotel room while on a
work trip was entitled to workers' compensation.
You'd be tempted ask whether sex was now legally a regular
part of a business trip? Can you sue someone for bad sex? Maybe you
can get compensation if you don't get sex on a business
Sadly it doesn't open those possibilities. The case spun on
the legal definition of an injury in the course of employment.
The woman, a commonwealth public servant in her 30s, had been
sent in 2007 to a regional NSW town on business by her employer.
While staying at a motel she contacted a male friend who lived
locally. He came to her motel room and, in the excitement of their
sexual tryst, a glass light fitting came away from the wall above
the bed, hitting her on the face. Her nose and lips were badly cut
and she was taken to hospital.
She initially took her case to ComCare, the federal government
workplace safety body, saying it left her with facial and
psychological injuries. It rejected her claim.
She appealed to the Administrative Appeals Tribunal but it
upheld ComCare's decision. The Tribunal ruled sexual activity
was not an ordinary incident on an overnight work trip such as
showering or sleeping. It said the woman was involved in a
"recreational activity that wasn't induced, encouraged or
countenanced by her employer".
She took her case to the Federal Court. Her barrister argued sex
was a normal part of life and often took place in motel rooms.
ComCare's lawyer argued while sex was normal, it wasn't
necessary like sleeping and showering.
It wasn't clear from evidence whether the woman or the man
pulled the glass fitting from the wall. In a statement to the court
the man thought the woman was on her back when the light fell
"but I wasn't paying attention because we were rolling
Last April Justice John Nicholas ruled the woman was engaged in
a lawful recreational activity and the injury happened during the
course of her employment.
"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."
The judge ordered ComCare to pay her legal costs.
Who said public servants don't get down to business?
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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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