Court rules woman hurt during sex on work trip entitled to compensation

An Australian public servant injured on a work trip while having sex with a male friend at a motel is entitled to compensation, a court has ruled. The woman, who cannot be named for legal reasons, was denied a Workers' Compensation claim for facial and psychological injuries suffered when a glass light fitting came away from the wall above her bed as she was having sex in November 2007. She took ComCare, the federal government workplace safety body, to the Federal Court over its decision to reject her claim. Justice John Nicholas, ruled in her favour, saying the injuries were suffered in the course of her employment. The woman, aged in her late 30s, was employed in the human relations section of a Commonwealth government agency. The agency had sent her to a town in country NSW where she and a colleague were conducting budget reviews and meeting local staff. She was booked into a motel overnight.

In the judgment Justice Nicholas said it was agreed that the woman met a male friend who lived in the country town three or four weeks before the accident. They spoke several times on the phone and she made arrangements to meet up with him at the motel. It was not specified if the light fitting was pulled off the wall by the woman or her male partner, Justice Nicholas said. The Administrative Appeals Tribunal had earlier upheld ComCare's decision, finding that sexual activity was "not an ordinary incident of an overnight stay like showering, sleeping, eating or returning to the place of residence from a social occasion elsewhere in the vicinity. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced". However, Justice Nicholas disagreed, finding it was not necessary for the woman to show that the activity that led to the injury was one that had been expressly or impliedly induced or encouraged by her employer.



"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," he said. "In the absence of any misconduct or an intentionally self inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result." During the hearing, the woman's barrister, Leo Grey, said sex was "an ordinary incident of life" commonly undertaken in a motel room at night, just like sleeping or showering.Mr Grey referred to previous cases, including when compensation was granted to a worker who slipped in the shower at a hotel. Mr Grey said there was no suggestion the woman had engaged in any misconduct and noted the absence of any rule that employees should not have anyone else in their room.

But Andrew Berger, for ComCare, said sex was not "an ordinary incident of an overnight stay like showering, sleeping or eating". While sexual activity was an ordinary incident, it was not necessary, he added. In his statement, her sexual partner said they were "going hard". "I do not know if we bumped the light or it just fell off," he said. "I think she was on her back when it happened but I was not paying attention because we are rolling around." In May last year, the woman was granted a suppression order on her name after she told the court she would withdraw her suit if she was publicly identified. Justice Nicholas ruled "the administration of justice would be prejudiced unless an order is made protecting the identity of the applicant". He took into account evidence the woman was suffering from depression and anxiety. "I am satisfied that this is not a case where the application for [non-publication] orders is motivated by simple desire to avoid embarrassment or ridicule," he said.