Hurt while on the job?

[Gob]

in both senses of the term...

A public servant injured on a work trip while having sex with an acquaintance at a motel is entitled to compensation, a court has found.

The woman, who cannot be named for legal reasons, was denied a 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.

She took ComCare, the federal government workplace safety body, to the Federal Court over its decision to reject her claim.

Today, Justice John Nicholas, ruled in her favour, saying the injuries were suffered in the course of her employment.

The woman's employer had sent her to spend the night at a NSW rural motel before a departmental meeting the next day.

During the hearing, the woman's barrister, Leo Grey, said sex was "an ordinary incident of life" commonly undertaken in a motel room at night, just like sleeping or showering.

Mr Grey referred to previous cases, including when compensation was granted to a worker who slipped in the shower at a hotel.

Mr Grey said there was no suggestion the woman had engaged in any misconduct and noted the absence of any rule that employees should not have anyone else in their room.

But Andrew Berger, for ComCare, said sex was not "an ordinary incident of an overnight stay like showering, sleeping or eating".

While sexual activity was an ordinary incident, it was not necessary, he added.

In his statement, her sexual partner said they were "going hard".

"I do not know if we bumped the light or it just fell off," he said.

"I think she was on her back when it happened but I was not paying attention because we are rolling around."

In May last year the woman was granted a suppression order on her name after she told the court she would withdraw her suit if she was publicly identified.

Justice Nicholas ruled "the administration of justice would be prejudiced unless an order is made protecting the identity of the applicant".

He took into account evidence the woman was suffering depression and anxiety.

"I am satisfied that this is not a case where the application for [non-publication] orders is motivated by simple desire to avoid embarrassment or ridicule," he said.



Read more: http://www.smh.com.au/nsw/woman-hurt-du ... z1sSDjhRfs

What do our legal beagles make of this?

[Sue U]

This was exactly the result that dgs49, Guinevere and I all agreed was proper, and pretty much a no-brainer. Glad to see Aus isn't entirely insane.

[Gob]

A public servant who fought for and won workers' compensation for an injury sustained while having sex in a motel room on a work trip could have the money taken away after the Commonwealth appealed to a full bench of the Federal Court.

In November 2007, the woman - who cannot be named - had been sent by her government employer to a country town for a departmental meeting and put up in a hotel.

The night before the meeting she suffered facial and psychological injuries when a glass light fitting came away from the wall above the bed as she was having sex with a male friend.

The Commonwealth workers compensation agency Comcare originally rejected her application for compensation - a decision upheld by the Administrative Appeals Tribunal.

But earlier this year Justice John Nicholas of the Federal Court overturned that decision, finding that the woman was entitled to compensation on the grounds that she was ''in the course of her employment'' when the injury occurred.

However, Comcare has now appealed this decision to a full bench of the Federal Court. Court documents show that Comcare will claim that having sex on a work trip was not an activity that was "expressly or impliedly induced or encouraged" by the woman's employer.


Read more: http://www.smh.com.au/national/twist-in ... z211c7ARom

Surely she should sue the hotel?

[Sue U]

Surely she should sue the hotel?

Surely ComCare should sue the hotel?

There may be practical economic reasons why she is going strictly through workers compensation and not suing in tort. Or it may be that she doesn't want to sue because of publicity. In any event. ComCare has a subrogation claim against the hotel that it could have been pursuing to get paid back, rather than trying to stiff this poor woman for a legitimate claim.

[Econoline]

...especially since getting stiffed is what caused the claim in the first place.

[Gob]

It started with a dinner date and a tryst in a motel room in the country, made its way to the Federal Court and now a notorious compensation case about a woman injured while having sex on a work trip will play out in the High Court.

The federal government's workplace safety body, Comcare, was granted leave on Friday to appeal, to seek a High Court ruling on the distinction between private and business activities when employees are travelling for work.

The appeal will examine a long-standing legal test used in compensation matters, which sets out how breaks between periods of actual work are considered when an employee is required to be away from home.

The female Commonwealth public servant at the centre of the case, whose name has been suppressed, was required to travel to regional NSW in 2007 and stayed at a motel booked by her employer.

She arranged to meet a male friend and, after going out for dinner, the pair went to her motel room and had sex.

In a statement in previous court hearings, the woman's sexual partner said they were ''going hard'' when a light fitting was pulled from the wall and fell on her. She suffered wounds to her nose and mouth, as well as psychological injuries, and has faced a lengthy legal battle to receive a payout.

Her claim was initially accepted by Comcare, but was revoked in 2010 and reviewed by the Administrative Appeals Tribunal, which found sexual activity was ''not an ordinary incident of an overnight stay like showering, sleeping, eating''.

The woman appealed against that decision in the Federal Court and won in April last year, a judge finding the injuries were suffered in the course of her employment.

Comcare appealed unsuccessfully in December and announced it would take the matter to the High Court.

Solicitor-General Justin Gleeson, SC, representing Comcare, said: ''The case is not simply about a particular form of sexual activity in the hotel room. If you think more broadly what is at the heart of it is an exercise of autonomy by an individual.''

The woman's barrister, Leo Grey, said the legal test did not need to be revisited.

''In our submission, the test has stood the test of time for 20 years,'' he said. ''The fact that this case has raised some unusual facts has not resulted in an amendment.''

Mr Grey said there should not be any moral judgment about the woman's activities.

Justices Kenneth Hayne and Stephen Gageler granted leave to appeal, on the basis that any previous payment to the woman be allowed to stand. The appeal may be heard in August



Read more: http://www.smh.com.au/national/sex-inju ... z2T833bj8B

[Gob]

The High Court is hearing a case where a public servant wants workers compensation after being injured while having sex during a work trip in 2007.

The incident happened when the public servant travelled to a New South Wales country town as part of her job.

She suffered injuries to her face after a light fitting came off the wall while she was having sex in her room.

Initially Comcare agreed to compensation but then revoked the claim.

The Federal Court later ruled in favour of the woman, prompting the High Court challenge.

The Commonwealth has told the High Court the incident was after hours and not in the course of her employment, so she should not be entitled to compensation.

But lawyers for the woman say the days of the 'master and servant relationship' are over, and it is not reasonable for her employer to dictate her after hours activities so long as there is no wilful misconduct.

The court heard since the incident happened in the room booked by the employer it is liable for compensation.

The court has reserved its decision.

[Crackpot]

So where does what stand now?

[Gob]

Fuctifino.

[oldr_n_wsr]

You would think the employer would go after the hotel as it was their lamp that fell.