A public servant injured on a work trip while having sex at a motel is entitled to compensation, a court has found.
The woman, who cannot be named for legal reasons, was denied a workers' compensation claim for facial and psychological injuries suffered when a glass light fitting came away from the wall above her bed as she was having sex in November 2007. She took ComCare, the federal government workplace safety body, to the Federal Court over its decision to reject her claim.
Yesterday, Justice John Nicholas ruled in her favour, saying the injuries were suffered in the course of her employment.
The woman, aged in her late 30s, was employed in the human relations section of a Commonwealth agency.
The agency had sent her to a town in country NSW where she and a colleague were conducting budget reviews and meeting local staff.
She was booked into a motel overnight.
In a written judgment, Justice Nicholas said it was agreed the woman met a male friend who lived in the country town three or four weeks before the accident. They spoke several times on the phone and she arranged to meet up with him at the motel.
Justice Nicholas said it was unclear if the oyster light fitting was pulled off the wall by the woman or her sexual partner.
In his statement tendered during the hearing, her sexual partner said: ''I do not know if we bumped the light or it just fell off. I think she was on her back when it happened but I was not paying attention because we are rolling around.''
The Administrative Appeals Tribunal had earlier upheld ComCare's decision, finding that sexual activity was ''not an ordinary incident of an overnight stay like showering, sleeping, eating or returning to the place of residence from a social occasion elsewhere in the vicinity. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced.''
However, Justice Nicholas found it was not necessary for the woman to show the activity that led to the injury was one that had been expressly or impliedly induced or encouraged by her employer.
''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 or encouraged her to engage in such an activity,'' he said.
''In the absence of any misconduct or an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result.''
The woman's barrister, Leo Grey, told the hearing having sex in such a situation was an ''ordinary incident of life''. ComCare was ordered to pay the woman's costs. with AAP