An Australian government worker is entitled to compensation
after sustaining injuries during sex while on a New South Wales (NSW) business trip. The decision comes after a five-year legal battle and appeal by Comcare, the employer's insurer.
The unnamed woman was injured in a New South Wales hotel room paid for by her employer in 2007. While having sex with a male friend, a light fixture fell on the woman. She received injuries to her face serious enough to require hospitalization. The woman also claims the depression triggered by the incident left her unable to work.
In a court statement
heard in 2011, the man claimed he was unsure of exactly how the fixture fell but indicated he did not know if the light was bumped during vigorous sexual activity or if it fell on its own.
"I think she was on her back when it happened but I was not paying attention because we were rolling around,” he said. The man was also quoted as saying they were "going hard" during the lovemaking session.
The initial claim was rejected by Comcare, a decision
upheld by the Administrative Appeals Tribunal. According to the AAT, the woman was engaged in a non-work related activity when the injury occurred.
Federal Court Justice John Nichols overturned the appeal, stating it does not matter whether the woman was having sex or playing a "game of cards" when the light fixture fell on her.
”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,” he said.
As a result of the decision, Comcare must pay all costs and must file an appeal with the court to argue the decision. The decision is currently being reviewed by the company.
''The issue is a significant one. Workers need to be clear about their entitlements and employers should have an understanding of their responsibilities and how to support their staff,'' says a Comcare spokesperson.