In a recent decision, the majority of the High Court held that a Commonwealth department was not liable to compensate a former employee who was injured while engaging in sexual intercourse at a motel she was staying at for work-related purposes. The decision overturns an earlier ruling of the Full Federal Court and clarifies previous decisions relating to when employers may be liable for injuries sustained in intervals during periods of actual work.
Comcare v PVYW
In November 2007, Ms P was required by her employer to work for two days in a regional town where she stayed overnight at a local motel, which had been booked and paid for by the employer. While having sex with an acquaintance in her motel room, Ms P was injured when a glass light fitting above the bed was pulled from its mount and struck her in the face. Ms P suffered physical injuries and later psychological injuries as a result of the incident.
Ms P sought workers’ compensation for her injuries from her employer’s insurer, Comcare. To be entitled to compensation, the Act required her to establish that her injuries were suffered “in the course of” her employment.
Ms P argued that they were, because she was injured while she was at a particular place, the motel room, at the inducement or encouragement of her employer. In a controversial decision in 2012, the Full Federal Court accepted that position, stating that it was not necessary for her to have also shown that the activity itself giving rise to the injury had also been induced or encouraged in some way by the employer.
In a similar vein, the Full Federal Court stated that the employer would also be liable if she had sustained her injuries playing cards.
However, the High Court majority rejected this approach, stating that liability for injuries occurring during intervals of work will depend overall on what the employer induced or encouraged the employee to do. Merely because an employer requires an employee to be at a particular location does not mean that any injury occurring there will attract liability. If the premises were themselves unsafe, it may.
But if the injury were to occur because of something the employee did, a further connection between that act and what the employer encouraged him or her to do may be needed. And in this case, the connection was not established. Ms P was denied compensation.
Lessons for Businesses
The case has limited the circumstances in which employers may be liable for injuries occurring during intervals between work periods, and provided guidance for cases of injuries incurred while working at other locations, during work functions or other out-of-hours conduct.
However, the decision related to workers’ compensation rules, and will not necessarily answer whether an employer has breached OH&S or anti-discrimination laws or the rules of vicarious liability, for all off-site or out-of-hours conduct.
Employers should ensure that managers and staff are aware of their responsibilities in the above respects, including by the appropriate training or induction courses. Agreements and policies should also set out what is expected of workers for out-of-hours conduct (including for the forthcoming festive season).
If you seek further guidance or if an employee injures themselves in the course of their duties, contact one of our lawyers.
This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.