Facts

A worker was injured while engaging in sexual intercourse when a light fitting was pulled from the wall causing injuries to her nose and mouth and, later, a psychological injury. The worker sustained these injuries in a motel where she was staying for a work trip. The worker claimed compensation for her injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SR&C Act).

The worker submitted that she was entitled to compensation because she was at the motel at the instigation of her employer and her injuries were suffered in the course of her employment and were compensable, absent any gross misconduct on her part. Comcare disputed the worker’s entitlement to compensation because it said the employer had to have induced or encouraged the worker to be in a particular place and engage in a particular activity. Comcare argued that the worker’s injuries had not arisen from an activity that was induced or encouraged her employer.

Earlier Decisions

The claim for compensation was initially argued before the Administrative Appeals Tribunal, which found that the worker’s injuries were unrelated to her employment because there was no connection between the activity undertaken by the worker and her employment.

The worker appealed that decision to the Federal Court and the Federal Court found that the worker was entitled to be compensated for her injuries.

Comcare appealed the Federal Court’s decision to the Full Court of the Federal Court, which dismissed Comcare’s appeal. In dismissing Comcare’s appeal, the Full Court said that it was an accepted principle that if an injury occurs during an interval or interlude in work, the injury will have occurred in the course of employment. The Full Court relied on a passage from an earlier decision by the High Court of Australia in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 that said that an interval or interlude within an overall period or episode of work occurs within the course of employment if the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.The Full Court said that a worker only need to show that either the employer had induced or encouraged the worker to spend the interval or interlude at particular place or that the employer had induced or encouraged the worker to spend the interval or interlude in a particular activity.

Comcare appealed the Full Court’s decision to the High Court of Australia.

The High Court of Australia’s decision

The High Court of Australia overturned the Full Court’s decision and found that the worker was not entitled to compensation for her injuries.

The High Court of Australia said that the Full Court’s decision had the effect of extending an employer’s liability to pay compensation under the SR&C Act beyond the limitation imposed by the SR&C Act which is inherent in the expression ‘in the course of’ an employee’s employment.

The High Court of Australia said that the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do during an interval or interlude in work. If the employee was engaged in an activity at the time of the injury, an employer must have induced or encouraged the employee to engage in that activity for the employer to be entitled to compensation. If the employee was injured at and by reference to a place, the employer must have induced or encouraged the employee to be at that place.

Points for employers to note

This decision assists with clarifying when an employer will be liable to compensate an employee for an injury or illness sustained outside of hours or away from the employer’s usual place of business. However, the facts involved in this case are unique and employers should consider other more common factual scenarios.

For example, is an employer who requires its employees to live in remote locations for periods of time liable for an injury or illness that an employee suffers in between shifts? Such a question was considered in Fridd v Employers Mutual Limited (SA)/ WorkCover Corporation (Spotless P & F Pty Ltd) [2013] SAWCT 21 where an employee claimed compensation for an injury he sustained while playing squash in an interval between shifts at a camp in regional South Australia. In this instance the employer was not found to be liable. However, in Qantas Airways Ltd v Arnott [2013] NSWWCCPD 35 Qantas was found to be liable for the injuries a flight attendant suffered when he was assaulted after leaving a bar during a break between two flights because Qantas had induced or encouraged the flight attendant to visit restaurants and bars during work intervals.