ComCare: “in the course of employment” – “interval or interlude” & “lawful sex”

PVYW v Comcare (No 2) [2012] FCA 395

Issue: whether injuries sustained whilst having lawful sex at a motel were in the ‘course of employment’ as being an ‘interval or interlude’.

Overview: the injured applicant appealed the decision and findings of the Tribunal that the sexual activity was not in the ‘course of her employment’ because it was an interruption to the ‘interval or internal’ principle; namely: that it was unrelated to her employment, took place during her leisure time and was of a private nature.

The facts were agreed and uncontroversial:

2.

The Tribunal hearing was conducted on the basis of agreed facts. The following summary of the relevant facts is drawn in part from the agreed facts and in part from the Tribunal’s summary of them.

3.

At the time of the events in question, the applicant was in her late thirties, and was employed in the Human Relations Section of a Commonwealth Government agency. In November 2007 she was required by her employer to travel with a fellow employee to a country town in New South Wales. The fellow employee was to conduct budget reviews and provide training. The applicant was to observe the budgeting process and meet local staff. The applicant stayed at a motel which was booked by her employer. Her fellow employee stayed at a different motel.

4.

The applicant had met a male friend who lived in the country town some three or four weeks before the relevant events occurred. They spoke several times on the phone. After she learnt that she would be visiting the country town, she made arrangements to meet up with him at her motel. They went to a restaurant for a meal and then, at around 10 or 11 pm, went back to the applicant’s motel room where they had sex.

5.

At the time the applicant was injured, she was in the motel room having sex on the bed with her companion. The agreed facts suggest that the room was dark at the time. While they were having sex, a glass light fitting located above the bed was pulled from its mount. The light fitting fell on the applicant, causing injuries to her nose and mouth. She was later taken to hospital for treatment.

6.

The agreed facts did not specify whether it was the applicant or her companion who pulled the light fitting from the wall. Whether this was done by the applicant or her companion was not something the Tribunal appears to have considered to be significant, nor was it suggested during the hearing of the appeal that it was relevant to, much less determinative of, any issue arising for decision.

7.

The agreed facts record that the applicant did not advise her employer how she intended to spend her time while she was at the motel or who, if anyone, she intended to associate with while staying there.

8.

There was no dispute that the applicant was, at the relevant time, an employee of the Commonwealth temporarily away from her usual workplace at the request of her employer. Nor was there any dispute that the injuries suffered by the applicant were both a physical and a psychological injury for the purposes of the Act, resulting in incapacity for work or an impairment.

9.

It was accepted by the respondent, in a concession which the Tribunal expressly endorsed, that there was no “gross impropriety” in the applicant’s behaviour on the day she suffered her injury.

 I refer you to paragraphs [27] – [56] for discussion  of the law.

The appeal was successful on the basis of the principle in Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473.

Brisbane Barrister – David Cormack

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