PVYW v Comcare (No. 2) [2012] FCA 395

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 her employment.


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.

Central issues

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 her employer.'

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 (employer).'

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 different result.'


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 serious misconduct.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.