the personal injury and clinical negligence blog

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“Safe sex” – Part 2

Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions about activities which can properly be said to arise out of or occur in the course of employment. 


The appellant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.


The appellant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.


The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the motel in a small town in New South Wales ahead of a departmental meeting early the next day.


The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.


However, on appeal to the Federal Court of Australia (FCA), the appellant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.


Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”.


The judge, Nicholas J., allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. The judge held that “While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant’s employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant’s lawful sexual activity” – see [54] of the judgment.


Comcare appealed to the full court of the FCA which on 13 December 2012 dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.


In a carefully reasoned judgment the full court, presided over by Keane CJ., rejected Comcare’s essential submission that “an injured employee who claims to have been injured during an interval or interlude between periods of actual work must show both that the injury occurred at a place he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer, or was implicitly accepted”.


The court held that that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways. Further, the concept of, here, “a frolic of her own” was one which applies to wrongful acts. The court also made clear that “the views of the respondent’s employer about the respondent’s (lawful) activities were irrelevant, whether or not those views (if sought) may have reflected disapproval or indifference” – see [50] – [55] of the judgment.


This must be right. Why should being injured whilst having sex be any different to the claimant being injured whilst working out on one of the exercise bicycles or cross trainers in the motel’s gym provided that the injury occurred within an overall period or episode of work and negligence can be shown. Further, why should the employer approve when and how an employee has sex any more than where she chooses to have her breakfast?


Comcare is considering an appeal to the High Court, Australia's highest legal tribunal. In the meantime, common sense has prevailed, the judgment provides useful guidance on the scope of workplace injuries and I, for one, will in future double check the structural integrity of motel light fittings.  

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