1. “SAFE SEX” – PART 3
Sex activity is in every sense a personal choice.
Ordinarily this truism might not find its way into legal submissions and certainly not
submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily
injuries at work do not arise from a “vigorous” sex session in a motel bedroom.
Regular readers will recall the story so far in relation to this unfortunate “on the job” injury
which raises important questions for personal injury and employment lawyers in the UK
about the types of activities which can properly be said to arise out of or in the course of
employment.
The respondent, a female public servant sued the Australian federal government after being
injured while having sex on a work trip in a motel bedroom. The respondent’s partner’s
evidence was that they were “going hard” when a glass light fitting came away from the wall
above the bed striking her in the face and causing both physical and psychological injuries.
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 a 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.
Nicholas J. allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395.
Comcare appealed to the full court of the Federal Court of Australia (FCA) which dismissed
its appeal – see Comcare v PVYW [2012] FCAFC 181.
In particular, the FCA rejected Comcare’s submission that an injured employee must show
both that the injury occurred at a place where 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. It held 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.
Comcare appealed to the High Court of Australia which on 30 October 2013 by a majority of
4-2 allowed the appeal and rejected the respondent’s claim for compensation – see Comcare v
PVYW [2013] HCA 41.
The judgment of the majority was given by Chief Justice French AC. The essential enquiry in
each case was how was the injury brought about? Sometimes the injury will have occurred at
and by reference to the place where the employee was. Usually, however, it will have
occurred while the employee was engaged in an activity.
The majority held that when an activity was engaged in at the time of injury, the question to
be asked was whether the employer induced or encouraged the employee to engage in that
activity? However, when an injury occurs at and by reference to a place, the question then
was whether the employer induced or encouraged the employee to be at that place? If the
answer to the relevant question is yes, then the injury will have occurred in the course of
employment – see [38] of the judgment.
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2. 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 the place where the
injury occurred because such inducement or encouragement is not relevant to the
circumstances of that injury.
Put another way, an employer is not liable for an injury which occurs when an employee
undertakes a particular activity if the employer has not in any way encouraged the employee
to undertake that activity but has merely required the employee to be present at the place
where the activity is undertaken.
Bell J. dissented. She held that to consider the connection between the circumstances of the
injury and the employment relation would be to add complexity at the cost of certainty and
consistency - see [106] of the judgment. Gageler J. agreed. He held that the particular activity
in which the respondent was engaged at the time she was injured does not enter into the
analysis - see [159] of the judgment.
The High Court’s decision means that in Australia an employer will not become, in reality, an
insurer for an employee in respect of any activity carried out at a place which the employee
has been induced or encouraged by the employer to be. It also provides useful guidance to UK
lawyers who may be called upon to deal with unusual work place related injuries.
The decision also restores certainty and structure to the law of employers' liability in Australia
– something which was sadly lacking in the motel light fitting in question!
© Simon Readhead Q.C. 08.11.13
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