A public servant injured while having sex in a motel on a
work trip is entitled to compensation after the Federal Court
dismissed an appeal against her.
The federal government workplace safety body, Comcare, had
appealed against the court's decision that the woman was "in
the course of her employment" when she was injured while
having sex with an acquaintance in a motel room.
The woman, who cannot be named for legal reasons, had
challenged the rejection of her workers' compensation claim
for facial and psychological injuries suffered when a glass
light fitting came away from the wall above the bed as she
was having sex in November 2007.
The Administrative Appeals Tribunal (AAT) upheld Comcare's
rejection of the claim and found the woman was engaged in a
private activity when she was injured.
But this decision was set aside by the court's Justice John
Nicholas last April.
"If the applicant had been injured while playing a game of
cards in her motel room she would have been entitled to
compensation, even though it could not be said her employer
induced or encouraged that activity," Justice Nicholas said
at the time.
Comcare appealed that decision, but in a judgment handed down
last week, the court's full bench found Justice Nicholas was
correct to declare the woman was entitled to compensation.
The woman was in her late thirties at the time of the
incident and employed in the human relations section of a
commonwealth government agency.
Her employer sent her to spend the night at a NSW country
motel ahead of a departmental meeting the next day.
That evening, she met her friend for dinner before they had
sex, during which the light fitting dislodged from its mount
and fell on her.
In his statement, the man said they were "going hard" and he
did not know if they bumped the light or if it "just fell
"I think she was on her back when it happened, but I was not
paying attention because we were rolling around," he said.
The appeal was dismissed with costs.