Injury at Work? – Comcare v PVYW

Previously we discussed entitlements and obligations under the Workers Compensation and Injury Management Act 1981, this month we are going to have a brief look at injury ‘at work’ purely because of the very recent High Court Decision COMCARE v PVYW [2013] HCA 41 (a summary can be found HERE) which involved an employee having sex in a motel room whilst on a work trip and a light fitting that was, importantly I think, pulled from the wall during the act.

This was the ongoing saga of a Federal employee who made a claim for compensation following a work trip where she had to stay overnight in a motel booked by the employer and was injured when a light fitting was pulled off the wall during sex with a partner. Initially, the claim was accepted, however, after a bit of time a dispute arose between the employee and the insurer and it went to many hearings before ending up in the High Court.

The High Court thought that the test in Hatzimanolis v ANI Corp [1992] HCA 21 ( the leading HIgh Court decision in matters of this type where the employee was working in WA) had not been correctly understood and set about explaining what they really meant in particular with respect to an injury that occurs during an interval at work (think FIFO worker that has knocked off work and is back at camp). The High Court believes that in order for an injury that occurs in this intervening period (between knock off and back the next morning) to be capable of sustaining a workers compensation claim the injury must have occurred whilst the worker was engaged in an activity that was encouraged or induced by the employer.

There are many sites where the employer has set up gym equipment, swimming pools, sports fields and a range of other activities which have led to injuries on the job and successful workers compensation claims in the past (minus any gross misconduct issues). This decision will not have much of an impact on scenarios such as these because the inducement or encouragement can be seen as the erection of the facilities and the supply of equipment to undertake that particular activity. It is also clear that if you are asleep in your room on site (or in a motel on a work trip) and you roll over in bed and a light fitting falls on your head injuring you a claim for workers compensation can still be made.

The decision may have been decided differently if the couple had finished their goings-on and had fallen asleep before the light fitting had fallen of its own accord but it would certainly be arguable that in that scenario the employee was only doing an activity encouraged by the employer (laying in bed).

Any time you are unsure of what your rights are you can contact us on 08 6143 5200 to discuss it over the phone.

Anvil Legal