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  HCA
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;  HCA 21.
On appeal to the High Court, Comcare said that this test had
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
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
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;
be clear on what activities are part of the job (but you
don't have to specify everything that is not
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.
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