A Federal Government employee was required by her employer to travel to country New South Wales to meet local staff. The employee stayed in a motel which was booked by her employer. She met up with a friend who lived in the town and after dinner at a local restaurant, the pair went back to the employee's motel room.
The employee suffered facial injuries when a glass light fitting above the bed was pulled from its mount while the couple was having sex. She brought a worker's compensation claim for physical and psychological injuries arising out of, or in the course of, her employment.
The Administrative Appeals Tribunal considered that the employee's overnight stay was an 'interval or interlude' in the overall period of work. However, the Tribunal found that the 'interval' had been interrupted when the employee embarked upon a private activity. It therefore held that the employee's injuries were not suffered in the course of her employment.
On appeal, the Federal Court overturned the Tribunal's decision, on the basis that it had erred in finding that it was necessary for the employee to show that the particular activity which led to her injury was one that had been induced or encouraged by her employer. In the absence of any gross misconduct, it was only necessary for her to show that the employer had encouraged her to spend the interlude in a particular place.
Justice Nicholas said that if, for example, the employee had been injured playing cards in the motel room she would have been entitled to compensation, even if her employer had not encouraged her to engage in such an activity. The fact that she was engaged in sexual activity rather that some other recreational act while in her motel room, did not lead to a different result.
PVYW v Comcare (No 2) [2012] FCA 395
An employee need not prove that a particular activity which has resulted in a compensable injury was induced by the employer. Provided there is no 'gross misconduct' on the part of the employee, they need only show that they were encouraged by the employer to spend the 'interlude' in that particular place.
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