Workplace safety body Comcare has been granted an appeal to the High Court of Australia to challenge a compensation claim brought by a woman who was injured whilst engaging in sexual intercourse during a business trip in 2007. Having been sent to Nowra to conduct budget reviews for her employer (a federal agency), the woman returned to her hotel room with a “male acquaintance” after dinner, where they had “vigorous sex”. As reported in the Sydney Morning Herald, a light fitting above the bed fell onto the woman’s face during intercourse, and she received a compensation payout from Comcare for ‘facial and psychological injuries’ sustained during the course of her employment. However in 2010, Comcare revoked her payout after the Administrative Appeals Tribunal found that sex was not an “ordinary incident of an overnight stay”.
The woman took the matter to the Federal Court, and succeeded in April last year on the grounds that her safety during the entirety of the trip was the responsibility of her employer. News Limited reports that Comcare’s appeal will see the High Court looking at the distinction between private and business-related activities on work trips, and asking the legal question: “when is someone in the course of employment”. Judges had pointed out that if the injury had occurred when the woman was “playing a game of cards”, she would have received compensation despite not having been encouraged to partake in the activity by her employer.
The woman’s barrister Leo Gray told News Limited that “moral judgement” should be withheld, and the unusual circumstances through which the woman’s injury was sustained did not require an amendment to the legal test of how breaks from ‘work’ are considered on a business trip. The Cairns Post reports that the solicitor representing Comcare stated that at the heart of the case is the “exercise of autonomy” by an individual. The case is set to come before the High Court in August this year.