Comcare v PVYW [2013] HCA 41: Workers Compensation for Sex Injury

The High Court has held in the case of Comcare v PVYW [2013] HCA 41, by majority, that the appellant Comcare was not liable to pay compensation to a government employee who suffered an injury during sexual intercourse, whilst staying overnight on a work-related trip to a regional town.

Facts of the Case

The respondent was required by her employer to work for two consecutive days in a regional town, and a local motel had been booked by her employer. Whilst at the motel, the respondent engaged in sexual intercourse with an acquaintance. A glass light fitting above the bed was pulled from its mount and struck the respondent on her nose and mouth, causing her physical injuries and a subsequent psychological injury. The respondent sought compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth), arguing that her injuries were suffered "in the course of" her employment and that she was therefore entitled to compensation. 

The Original Decision

The Administrative Appeals Tribunal held that the respondent's injuries were unrelated to her employment. The Federal Court of Australia set aside the Tribunal's decision on appeal, and their decision was upheld by the Full Court of the Federal Court, who found that the respondent's injuries occurred in an "interval or interlude" during an overall period of work and, therefore, arose in the course of her employment. An interval or interlude existed because the respondent's employer had induced her to spend the night at the motel. It was not necessary to show that the respondent's employer had induced her to engage in the particular activity in which she was engaged when the injury occurred. Comcare appealed by special leave to the High Court. 

The High Court Appeal

The High Court allowed Comcare's appeal, with the majority finding that in order for an injury sustained in an interval or interlude during an overall period of work to be in the course of an employee's employment, the circumstances in which the injury occurred must be connected to an inducement or encouragement by the employer. If the employee is injured whilst engaged in an activity at a certain place, the connection does not exist simply because of an inducement or encouragement to be at that place. When the circumstances of an injury involve the employee engaging in an activity at the time of the injury, the relevant question is whether the employer induced or encouraged the employee to engage in that activity. The majority found that this was not so in this case.

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