An Australian bureaucrat who was injured while having sex in a motel room during a business trip has won a five-year legal battle against the federal government for worker’s compensation.
Reporters yesterday read the reasons the Full Bench of the Australian Federal Court gave on Thursday for rejecting an appeal by the government’s insurer, Comcare, against an earlier court declaration that the woman was injured in the course of her employment.
The woman, who cannot be identified for legal reasons, was staying in a motel in the town of Nowra, 160km south of her hometown of Sydney, on Nov. 26, 2007, when she had sex with a male friend in her room. She was then in her late 30s.
During the sex, a glass light fitting was torn from its mount above the bed and landed on her face, injuring her nose and mouth. The courts have not decided on whether the woman or the man dislodged the light, ruling that factor irrelevant to the case.
The woman was treated in hospital for her injuries. She later suffered from depression and was unable to continue working for the government.
Her claim for worker’s compensation for her physical and psychological injuries was initially approved by Comcare, but later rejected after further investigation.
She unsuccessfully appealed to the government’s Administrative Appeals Tribunal, which reviews bureaucrats’ decisions. The tribunal agreed with Comcare that her injuries were not suffered in the course of her employment.
The tribunal found that the Australian government had not induced or encouraged the woman’s sexual conduct and could not have reasonably expected that she would have contemplated it.
The tribunal also found the sex was “not an ordinary incident of an overnight stay” such as showering, sleeping and eating.
The woman won an appeal in the Federal Court on April 19 this year when Judge John Nicholas rejected the tribunal’s findings that the sex had to be condoned by the government if she were to qualify for compensation.
“If the applicant had been injured while playing a game of cards in her motel room, she would be entitled to compensation even though it could not be said that her employer induced her to engage in such activity,” Nicholas wrote in his judgment in favor of the woman receiving compensation.
In the Full Bench decision, judges Patrick Keane, Robert Buchanan and Mordy Bromberg agreed last week that the government’s views on the woman having sex in her motel room were irrelevant.
“No approval, express or implied, of the respondent’s conduct was required,” they said.
It is not yet clear how much compensation the woman will be paid.
Comcare is considering an appeal to the Australian High Court, the country’s highest legal authority, Comcare spokesman Russ Street said.
“The issue is a significant one,” Street said in a statement. “Workers need to be clear about their entitlements and employers should have an understanding of their responsibilities and how to support their staff.”
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