In what surely must be one the most interesting attempts to claim workers compensation, a public servant has lost her case in the High Court.

Here is one of the most memorable first paragraphs from a judgement of the High Court in years:

The [injured worker] was at the relevant time employed by a Commonwealth government agency. She had been required to visit a regional office of the agency… with another work colleague to observe the budget review process, meet the regional staff and undertake training. For that purpose, she stayed overnight at a nearby motel which had been booked by her employer.

During the course of the evening at the motel, the [injured worker] engaged in sexual intercourse with an acquaintance. In that process, the glass light fitting above the bed was pulled from its mount by either the [injured worker] or her acquaintance and it struck the respondent on her nose and mouth. As a result, the [injured worker] suffered physical injuries and a subsequent psychological injury.

While novel, the case contributes to our understanding of being injured “arising out of or in the course of employment”. When an employee is away from work and are injured, in what circumstance can compensation be claimed?

Previous cases include:

• A railway worker died when the van in which he was accommodated caught fire at night. The van had been provided by his employer and was fitted out to lodge two employees. The places at which employees worked were remote from their own homes and the van was moved from workplace to workplace.

• An employee was killed in his lunch break by a train while crossing the railway line on his way to the camp provided by the employer.

• Employees were playing cricket in their lunch break at their place of work, when one employee was injured. He had tripped over a metal disc as he walked forward to pick up a ball. Employees were not expected to leave the premises and playing games was a recognised practice.

In the recent High Court case, the lower courts held the public servant was entitled to workers compensation as she was on a work-related overnight stay.

The High Court, by majority, held that Comcare was not liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). She argued her injuries were suffered “in the course of” her employment and that she was, therefore, entitled to compensation.

The Administrative Appeals Tribunal held the respondent’s injuries were unrelated to her employment. On appeal, the Federal Court of Australia set aside the AAT’s decision. The Federal Court’s decision was then upheld by the Full Court of the Federal Court. The Full Court held that the employee’s injuries occurred in an “interval or interlude” during an overall period of work and, therefore, arose in the course of her employment.

The High Court allowed Comcare’s appeal. A majority of the High Court held that in order for an injury sustained in an interval or interlude during an overall period of work to be in the course of an employee’s employment, the circumstances in which the employee was injured must be connected to an inducement or encouragement by the employer.

“If the employee is injured while engaged in an activity at a certain place, that connection does not exist merely because of an inducement or encouragement to be at that place. When the circumstances of an injury involve the employee engaging in an activity at the time of the injury, the relevant question is: did the employer induce or encourage the employee to engage in that activity?

“…for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.”

“Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do.”

Engaging in sexual intercourse while on a work related trip is not one of those “activities” that an employer induces or encourages.

Employer’s take out:

Employees can be injured in the course of employment either at work while on a break or outside of work depending upon whether the employer has induced or encouraged them to participate in certain activities.

Policies should be drafted to outline what is expected or anticipated behaviour for employees while on breaks and outside of work hours where travel is involved. Playing of games, use of alcohol or use of electrical devices such as phones, should all be considered in drafting a policy.

Focus on the activity and whether it is allowed by you as an employer.