The High Court has upheld an appeal against a woman being able to claim workers’ compensation for injuries sustained while having sex in a motel after finishing working hours.

The court ruled on Wednesday that Comcare was not liable to pay compensation to a Commonwealth government employee who stayed overnight in a motel on a work-related trip to a regional town.

The woman, who was identified only as PVYW, suffered injuries whilst engaging in sexual intercourse in the motel room that her employer had booked for her to stay in for two consecutive days.

Whilst at the motel, the woman engaged in sexual intercourse with an acquaintance and, in that process, a glass light fitting above the bed was pulled from its mount and struck her nose and mouth, causing her physical injuries and a subsequent psychological injury.

She has sought compensation from Comcare, arguing that her injuries were suffered “in the course of” her employment and that she was, therefore, entitled to compensation.

The Administrative Appeals Tribunal held that the respondent’s injuries were unrelated to her employment. But this decision was set aside by the Federal Court and was later upheld, meaning she was able to claim compensation.

The Full Court held that the woman’s injuries occurred in an “interval or interlude” during an overall period of work and, therefore, arose in the course of her employment. An interval or interlude existed because the respondent’s employer had induced or encouraged her to spend the night at a particular place – the motel.

However, a majority of the High Court bench, led by Chief Justice Robert French, found that the crucial question was whether an employer induced or encouraged an employee to engage in a particular activity.

“If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment,” the judgement said.

“It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employers’ inducement or encouragement to be present at a place is not relevant in such a case.”

In a dissenting decision, Justice Stephen Gageler said the Comcare appeal should be dismissed because the woman was in a place where her employer had encouraged her to be and, with no suggestion of misconduct, the injury was therefore sustained in the course of her employment.

“The particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis,” he said.

Dominic Woolrych

Dominic is the CEO of LawPath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.