Australian court denies compensation in workplace sex appeal

A decision from Australia’s high court has ruled that the woman’s employer did not encourage her to participate in sex so the federal government’s insurer, Comcare, is not liable to compensate her.

A lower court ruled that the woman was injured in the course of her employment and should have been compensated.

However, the high court’s ruling is final and will now have ramifications for other federal employees claiming compensation for unconventional work-related accidents.

The woman, who cannot be identified for legal reasons, was a civil servant in her 30s when she was hospitalised with an injury in 2007.

She was having sex in her motel room with a man when a glass light fixture above the bed fell on her face, injuring her nose and mouth. The woman later suffered depression and was unable to continue working for the government.

Comcare initially approved her claim for compensation, but later rejected it after an investigation.

A tribunal agreed that her injuries were not suffered in the course of her work, saying the government had not “induced or encouraged” the woman’s sexual conduct.

Not ordinary

The tribunal found the sex was “not an ordinary incident of an overnight stay,” such as showering, sleeping or eating.

Federal court judge John Nicholas overturned that finding last year – rejecting the tribunal’s findings that the sex had to be condoned by the government if she were to qualify for compensation.

“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 her to engage in such activity,” the judge wrote.

Comcare lost its appeal last December, with three judges finding that the government’s views on the woman having sex were irrelevant to the case.

The high court then ruled that Comcare was not liable to pay compensation, the judges did not say how much compensation was already paid.

Comcare declined to confirm on the amount but said they were considering recovering it.

“The relevant question is – did the employer induce or encourage the employee to engage in that activity?” the court ruling said. A majority of judges answered no.

Crossing boundaries

The overnight stay was within the two-day period of the work trip, her employer had encouraged the woman to stay in the motel in Nowra, 100 miles south of her home in Sydney.

Employment Minister Eric Abetz hailed the ruling as a victory for common sense; “Instances such as this, where an employee seeks to stretch the boundaries of entitlements, are of great concern and the High Court’s intervention is welcome”.

Australian National University law lecturer Cameron Roles said the ruling reduced the range of after-hours activities covered by workers’ compensation when an employee was away from home on business.