Sex injury case heading to the High Court

Sex injury case heading to the High Court

A worker injured in her motel room during a work trip was initially awarded compensation by the Federal Court. The worker sustained facial and psychological injuries after a glass light fitting came away from the wall above the bed in her motel room as she was having sex in November 2007.

The Federal Court dismissed an appeal from the woman’s former Commonwealth government employer, which argued that having sex during a work trip was not related to her employment.

The Court found that if she had been injured while playing a game of cards in her motel room she would be entitled to compensation and the fact that she was “engaged in sexual activity rather than some other lawful recreational activity while in her hotel room does not lead to any different result”. The worker’s claim was initially accepted by Comcare, but following further investigation that acceptance was revoked in 2010.

After three appeals, the Courts ruled in the worker’s favour on the basis that in the absence of any misconduct, or an intentionally self-inflicted injury, the woman’s injuries were sustained during “the course of her employment”. The Court found for the worker because she had suffered injury while in the motel room where her employer had encouraged her to stay.

The Commonwealth are seeking to have the decision overturned and have now been granted Special Leave to Appeal to the High Court. Comcare in a statement said it was seeking a ruling from the full bench of the High Court “on the boundaries between private and business activities when employees are travelling for work purposes”.

The case is significant for workplace law as it will potentially broaden the scope of injuries deemed to have “arisen out of or during the course of employment”. The case is expected to be listed before the High Court in August this year.

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