Sex, injury and worker’s compensation

Sex, injury and worker’s compensation

If you’ve ever wondered about the ins and outs of worker’s compensation for injuries sustained while away on a business trip, read on. The manner in which the injury in the case of PVYW v Comcare occurred may have raised a few eyebrows – but so did the fact that the case ended up in the Federal Court of Australia.

A worker’s compensation judgement delivered in Australia in April this year was unusual – one had to question why there was a case, let alone why it had to be decided in that country’s Federal Court. The principles were straightforward enough to expect the matter to be settled without resorting to the courts.

The general importance of the case (PVYW v Comcare 2012 FCA 395) is that it deals with the question of whether an employee is entitled to compensation if injured while away on business.

The applicant, a woman in her late 30s – Ms X – was a government agency employee and, if injured in and through the course and scope of her employment, would be entitled to worker’s compensation.

In November 2007, she and a fellow employee were required to go on a two-day business trip to a country town in Australia. They were booked into two different motels. A few weeks before the trip, Ms X met a man who happened to live in the town. When she learnt she would be visiting the town, they made arrangements to meet. They went to a restaurant, then to Ms X’s motel where they engaged in sexual activities.

The light was off at the time, and while they were so engaged, the light fitting on the wall above the bed was dislodged. It fell and smashed into Ms X’s face. No details are provided as to why or how the fitting became dislodged. Ms X was seriously injured, and taken to hospital. It is not clear which of the two pulled the light fitting from the wall and it is not suggested that this is in any way relevant. The question that arose was whether Ms X was entitled to worker’s compensation. It can be accepted that she was an employee of the Commonwealth, and was away from her usual place of employment at the request of her employer.

As is usually the case, she would be entitled to worker’s compensation if she suffered what is defined as “an injury … suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.”

Her application for compensation was denied, whereupon the matter was considered by an Administrative Tribunal set up in terms of the legislation in place to deal with these applications. The Tribunal took a very narrow view of the wording of the relevant section in the legislation.

Section 6(1)(c) provides that an employee’s injury may be treated as having arisen out of, or in the course of, their employment, if it was sustained while they were temporarily absent from their normal place of work and they were undertaking an activity associated with their employment or at the direction or request of the Commonwealth.

If a very narrow interpretation of this wording is taken, it could be argued that Ms X would be entitled to compensation if she was engaging in sex as an activity associated with the employer’s activities or at the direction of her employer. This narrow interpretation was abandoned many decades ago, hence the surprise that the matter needed a court to intervene.

Although Ms X would be away for two days, it was clear that during those two days there would be periods during which she would not actually be working on her employer’s work. The periods in which she would not be working, or would not be expected to be working, were designated as “interlude periods.” The evenings at the motel would be classified as interlude periods.

It was argued that not all accidents that occur during the interlude periods would attract compensation. The Tribunal argued that it was insufficient for an employee to simply be at a location away from the usual place of work at the request of the employer to be able to get compensation. The Tribunal argued that the employer had to have in some way have sanctioned the activity in which the employee was engaged when injured.

The Tribunal concluded: “Applying these principles to the applicant, although it is conceded that the nexus should not be interpreted in any narrow fashion, the requisite connection is absent. The employer had not expressly or impliedly induced or encouraged the applicant’s sexual conduct that evening. Nor did the employer know or could reasonably expect that such an activity was contemplated by her. The 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.”

This is still a rather narrow and impractical view of how compensation systems work. In order to be covered, Ms X would have to get permission to have sex! If she got permission, then it would be an activity contemplated by the employer. Needless to say, the real world in which we live simply doesn’t work like that.

Not surprisingly, the matter was taken the Federal Court on appeal which made short shift of the Tribunal’s argument. It would be absurd to suggest that only activities expressly or implicitly induced or encouraged by the employer would result in compensation.

The court ruled: “In my opinion the Tribunal erred in holding that for the applicant 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. 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. 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. There will be an order that the Tribunal’s decision be set aside. I shall also make a declaration that the injuries suffered by the applicant on 26 November 2007 were suffered by her in the course of her employment. The respondent must pay the applicant’s costs of the appeal and her costs of the proceedings before the Tribunal.”

And so, close to five years after the event, Ms X was entitled to compensation.

With respect, it seems the question of having sex was a red herring. Ms X was injured by a light fitting that fell on her face. That was the proximate cause of her injury, and she was injured while on her employers’ business. She did not have to be doing her employers’ business at the time to be entitled to compensation.

An employee who is injured while at work because their chair collapses will be entitled to compensation – there is no further question to ask. Whether the employee was doing their job or daydreaming at the time is irrelevant. And to say that if they had been daydreaming there would be no compensation is illogical. This narrow interpretation disappeared decades ago.

What is interesting about this case is that it demonstrates that an employee who goes away on a business trip and is injured during their time away is entitled to compensation.


Legally Speaking is a regular column by Professor Robert W Vivian, a leading authority on insurance and risk management. He has written a number of books on South Africa’s business history.

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