Australia: High Court says injury during sex on a work trip not "in the course of employment"

Last Updated: 2 November 2013
Article by Robbie Walker

Employers will only be liable for injuries suffered by employees in the course of their employment – however that doesn't include injuries from a sexual encounter while on a work trip, according to the High Court this morning (Comcare v PVYW [2013] HCA 41).

A work trip goes bad

Ms PVYW was sent to a country town by her employer to conduct budget reviews and provide training. As she was required to stay overnight, her employer booked her into a hotel.

Having finished work for the day and at a loose end, she called a friend who lived in the town for dinner. After the meal, they went back to her hotel room, where they also had sex. A glass light fitting above the bed was pulled from its mount, falling on Ms PVYW and injuring her nose and mouth, sending her to the hospital.

She then made a claim for workers' compensation.

Why the High Court found against her

Previous courts had found for Ms PVYW. These courts had looked at the general law on injuries in the course of employment, and applied the test in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21.

On appeal to the High Court, Comcare said that this test had been misapplied.

The question for the High Court was a simple one: Is an injury (no matter what caused it) within the "course of employment" if it occurs:

  • during an interval or interlude within an overall period or episode of work; and
  • at a place the employer has induced or encouraged the employee to spend that interval or interlude at; and
  • in circumstances where there is no disentitling behaviour (such as gross misconduct or the injury being self-inflicted)?

The High Court answered this question, "no". More is needed than just being in a particular place when an injury occurs while at work.

The right way to approach the problem is:

  • determine if the employee suffered injury, but not while engaged in actual work;
  • if so, what was the employee doing when injured? (the employee must have been either engaged in an activity or present at a place when the injury occurred);
  • how was the injury brought about?
  • if it occurred at and by reference to the place (eg. a wall collapses on an employee), the question is: did the employer induce or encourage the employee to be there?
  • when an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?

If the answer to either of the last two questions is "yes", then the injury is within the course of employment. Crucially, an inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured while engaged in an activity at that place.

In this case, although the employee was in the hotel room because her employer induced or encouraged her to be there, her mere presence was not what caused the injury to occur. It occurred because of an activity she engaged in without her employer's inducement or encouragement. The injury therefore was not within the course of employment, and compensation was not payable.

What this means for employers

The High Court's decision clarifies to some extent the scope of an employer's liability. While it is clear the employer did not induce or encourage Ms PVYW to have sex, what about other normal social activities? For example, in this case Comcare said it had an interest in its employees being clean and presentable; if the employee had been injured in the shower it conceded it would be liable.

As a result, although this case seems to give much clearer guidance, employers and their insurers might still find themselves arguing over whether there was inducement or encouragement of a particular activity, which in turn would give rise to liability.

For employers sending employees offsite, generally the rules remain the same:

  • take reasonable care when selecting a place – do a risk assessment and put control measures into place. This is particularly important where the place has inherent risk such as remote locations, overseas travel etc;
  • be clear about the nature of the employee's job and the risks that might arise, and take steps to mitigate those risks; and
  • be clear on what activities are part of the job (but you don't have to specify everything that is not work-related).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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