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A romp too far for workers comp

Date

Paul Malone

IT MUST take some guts to put in a Comcare claim for an injury sustained when having sex in a motel room after a day's work on a government posting to a country town.

But that's just what a woman in her late-30s, employed in the human relations section of a Commonwealth agency, did after a light fitting was pulled from the wall and hit her on the nose and mouth.

Many of us, I imagine, would be too embarrassed to mention such a thing, never mind put in a claim. Not that there was anything improper about the activity.

The woman was required by her employer to travel with a fellow employee to a country town in NSW, where her colleague was to conduct budget reviews and provide training. She stayed at a motel booked by her employer, while her colleague stayed at a different motel.

Some three or four weeks earlier the woman had met a male friend who lived in the town and she made arrangements to meet him at her motel. They went to a restaurant for a meal and at around 10pm or 11pm, went back to her motel room.

They were having sex in a darkened room when a glass light fitting above the bed was pulled from its mount. The fitting fell on the woman, causing injuries that required hospital treatment. It is not known whether the man or the woman pulled the fitting from the wall.

This might be regarded as a minor matter, were it not for the fact that a compensation claim was considered by the Administrative Appeals Tribunal - which rejected it - and then taken to the Federal Court, which set aside the AAT's decision.

In the Federal Court, Justice Nicholas ruled that the injuries sustained by the woman were ''suffered by her in the course of her employment''.

To the lay person the immediate question that comes to mind is: where do we draw the line in paying out workers compensation?

The Safety Rehabilitation and Compensation Act specifies the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, employment. An injury meets the criteria even if it was sustained while the employee was temporarily absent from the employee's place of work provided he or she was undertaking an activity associated with employment, or at the direction or request of the Commonwealth.

The AAT found that the woman's injury occurred during an ''interval or interlude'' consisting of the evening between the two days she was away for work. It observed that her employer had expressly induced or encouraged her to spend the two days at the town, that it had programmed work for her on both days, and that it had booked the motel where she was to stay. The AAT observed that not all injuries suffered during an ''interval or interlude'' were compensable, and that injuries which arose out of ''gross misconduct'' were not compensable. However, the Tribunal also noted that it was not suggested that the applicant was involved in any misconduct.

It then went on to ask whether the activity she was engaged in was ''sufficiently connected'' with her employment and concluded that it was insufficient for the employee simply to be at a particular location during an interval, or interlude, for liability for injury to arise. The activities engaged in during that interval which led to the injury had to be expressly or impliedly induced or encouraged by the employer. In what to me seems a commonsense decision, it concluded that the woman's injuries were unrelated to her employment, took place during her leisure time, and were of a private nature.

But Justice Nicholas ruled that there was no evidence before the AAT which enabled it to make a positive finding that the recreational activity engaged in by the woman was not countenanced by her employer.

He said an interval or interlude within an overall period of work occurred within the course of employment if, expressly or impliedly, the employer had induced or encouraged the employee to spend that interval at a particular place or in a particular way. Furthermore, an injury sustained in such an interval would be within the course of employment if it occurred at that place, or while the employee was engaged in that activity, unless the employee was guilty of gross misconduct taking him or her outside the course of employment.

I find this hard to accept and I doubt that such a wide ambit was intended when politicians voted to enact the legislation.

Justice Nicholas said the fact that the woman's employer did not encourage her to engage in sexual activity did not mean that it disapproved of her doing so. He said the essential question was whether it was open to the AAT to hold that the woman was not in the course of her employment at the time she suffered her injuries. The AAT erred in holding that for her to succeed, it was necessary for her to show that the particular activity which led to her injury was one that had been expressly or impliedly induced or encouraged by her employer.

Taxpayers can only hope that Comcare appeals. And if it fails in an appeal, amendments should be made to the legislation to ensure that compensation does not extend to injuries sustained in non-work-related activities.

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