PVYW v Comcare continued.


PVYW v Comcare continued.

I had previously written about this unusual case.

The High Court of Australia today gave leave to Comcare to appeal this matter.

Here’s the transcript of today’s article in The Age regarding this new development :

Sex injury compo case goes to the High Court

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Her claim was initially accepted by Comcare, but was revoked in 2010 and reviewed by the Administrative Appeals Tribunal, which found sexual activity was “not an ordinary incident of an overnight stay like showering,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


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