In Insurable Interest Issue 28 we reported to you about a Federal Court decision in a workers’ compensation claim for injuries suffered by an employee in the course of her employment.  A federal government employee was required by her employer to travel to country New South Wales and stayed in a motel which had been booked by her employer.  The employee sustained facial injuries when a glass light fitting above the bed in the motel room was pulled from a wall while she was having sex.
 
In finding that the employee’s injuries were unrelated to her employment, the Administrative Appeals Tribunal considered that the employee’s overnight stay was an ‘interval or interlude’ in the overall period of work.  However, the ‘interval’ had been interrupted when the employee embarked upon a private activity. 
 
The Federal Court found for the employee on appeal.  The Court held that the Tribunal had erred in finding that it was necessary for the employee to show that the particular activity which led to her injuries was one that had been induced or encouraged by her employer.  In the absence of any gross misconduct, it was only necessary for the employee to establish that the employer had encouraged her to spend the interlude in a particular place.  The very controversial decision was upheld by the Full Court of the Federal Court amid widespread publicity.
 
The employer recently appealed to the High Court of Australia.  The High Court held the relevant issue was not whether the employer induced the employee to be at a particular place, but whether the employer induced the activity which gave rise to the injury.  The majority of the High Court held that as the employer had not encouraged the employee to engage in the activity which gave rise to her injuries, her injuries had not arisen in the course of her employment.
 
Comcare v PVYW [2013] HCA 41